Carpenter v. Sullivan, et al.

Filing 168

ORDER DENYING AS MOOT Plaintiff's Motion for Subpoena re 167 Opposition to Motion filed by A. Salazar, Ortiz, A. Pfeil, Litton, J. Barajas, J. Martinez, J. Gonzalez, signed by Magistrate Judge Gerald B. Cohn on 12/20/2011. (Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIE LEE CARPENTER, CASE NO.: 1:07-cv-00114-AWI-GBC (PC) 12 Plaintiff, 13 v. 14 W. J. SULLIVAN, et al., 15 ORDER DENYING PLAINTIFF’S MOTION FOR SUBPOENA Doc. 167 Defendants. ______________________________________/ 16 17 I. Procedural History 18 Plaintiff Willie Lee Carpenter, a state prisoner proceeding pro se and in forma pauperis, filed this 19 civil rights action pursuant to 42 U.S.C. § 1983 on January 22, 2007. On January 24, 2011, Plaintiff 20 filed a motion to compel. Doc. 98. On June 6, 2011, Plaintiff filed another motion to compel. Doc. 21 125. On June 13, 2011, Plaintiff filed a motion for a subpoena. Doc. 129. On October 27, 2011, the 22 Court denied Plaintiff’s motion to compel and gave Plaintiff leave to amend. Doc. 152. On November 23 3, 2011, the Court denied as duplicative Plaintiff’s motion to compel filed on June 6, 2011, and ordered 24 Defendants to file an opposition of statement of non-opposition to Plaintiff’s motion for subpoena. Doc. 25 160. On December 5, 2011, Defendants filed an opposition to Plaintiff’s motion for subpoena. Doc. 26 167. 27 /// 28 /// 1 1 II. Plaintiff’s Motion for Subpoena 2 A. 3 Plaintiff must first request discovery from Defendants and if Defendants fail to make a disclosure 4 required by Rule 26(a) of the Federal Rules of Civil Procedure, then Plaintiff may request issuance of 5 subpoenas from the Clerk of Court pursuant to Rule 45(a)(3). Plaintiff's in forma pauperis status will 6 not relieve him from the payment of fees or expenses associated with the subpoenas. See Tedder v. 7 Odel, 890 F.2d 210, 211-212 (9th Cir.1989). Plaintiff must first serve the subpoenas, and if the 8 subpoenaed parties do not comply, then Plaintiff may file a motion to compel those parties to comply 9 with the subpoenas. Legal Standard 10 B. 11 In this instance, Plaintiff has failed to follow the procedures pursuant to Rule 45(a)(3) and given 12 his in forma pauperis status, Plaintiff would be required to make a showing that he could pay the 13 expenses associated with the subpoenas. Moreover, as Defendants correctly observe, the discovery 14 documents that Plaintiff requests are the same as those previously requested in his motion to compel 15 filed January 24, 2011. Compare Doc. 98 at 4-5 and Doc. 125 at 3-4 with Doc. 129 at 5-6. Therefore 16 Plaintiff's motion for subpoena, filed June 13, 2011, is duplicative of Plaintiff’s motions to compel 17 which have already been resolved by the Court. Motion for Subpoena 18 19 III. 20 Conclusion and Order Based on the foregoing, the Court denies Plaintiff’s motion for subpoena as moot. Doc. 167. 21 22 IT IS SO ORDERED. 23 24 Dated: 0jh02o December 20, 2011 UNITED STATES MAGISTRATE JUDGE 25 26 27 28 2

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