Fearence v. Schulteis et al

Filing 77

ORDER DENYING 76 Request for Issuance of Subpoena, Without Prejudice, signed by Magistrate Judge Gary S. Austin on 3/6/2014. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAQUES FEARENCE,

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Plaintiff,

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vs.

1:08-cv-00615-LJO-GSA-PC
ORDER DENYING REQUEST FOR
ISSUANCE OF SUBPOENA,
WITHOUT PREJUDICE
(Doc. 76.)

L. L. SCHULTEIS, et al.,

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Defendants.

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I.

BACKGROUND

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Jaques Fearence ("Plaintiff") is a prisoner proceeding pro se in this civil rights action

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pursuant to 42 U.S.C. ' 1983. This case now proceeds on the Third Amended Complaint filed

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by Plaintiff on November 22, 2013, against defendants Hopkins and Busby for use of excessive

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force; against defendants Hopkins, Davis, Duffy, and Beckett for failure to protect Plaintiff;

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and against defendants Hopkins, Busby, Davis, Duffy, and Beckett for conspiracy to use

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excessive force. (Doc. 64.)

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This case is currently in the discovery phase, pursuant to the court’s scheduling order

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issued on February 19, 2014. (Doc. 74.) On March 3, 2014, Plaintiff filed a request, seeking

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the issuance of a subpoena duces tecum commanding non-party Kim Holland, Warden of the

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California Correctional Institution/Litigation Office, to provide the following documents and

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information:

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--

Any designated documents or electronically stored information including
writings, drawings, graphs, charts, photographs, sound and video recordings,

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images, and other data or data compilations in regard to Plaintiff’s cell

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extraction on August 11, 2005; and

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--

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Any and all policies, directives, or instructions to staff concerning the use of
force with MK-9 foggers OC pepper spray, in year 2005.

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For the reasons set forth below, Plaintiff=s present request is denied, without prejudice.

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Subject to certain requirements set forth herein, Plaintiff is entitled to the issuance of a

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subpoena commanding the production of documents from non-parties, and to service of the

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subpoena by the United States Marshal. Fed. R. Civ. P. 45; 28 U.S.C. 1915(d). However, the

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Court will consider granting such a request only if the documents sought from the non-party are

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not equally available to Plaintiff and are not obtainable from Defendants through a request for

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production of documents. Fed. R. Civ. P. 34. Also, some of the documents sought by Plaintiff

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may be kept in Plaintiff=s central file at the prison, to which he is entitled to access.

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If Plaintiff wishes to make another request for the issuance of a records subpoena, he

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may file a motion requesting the issuance of a subpoena duces tecum that (1) identifies with

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specificity the documents sought and from whom, and (2) makes a showing in the motion that

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the records are only obtainable through that third party.

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For the reasons set forth above, IT IS HEREBY ORDERED that Plaintiff=s request for
the issuance of subpoenas, filed on March 3, 2014 is DENIED, without prejudice.

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IT IS SO ORDERED.
Dated:

March 6, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE