Fearence v. Schulteis et al

Filing 81

ORDER Denying Plaintiff's Second 80 Request for Issuance of Subpoena, without Prejudice signed by Magistrate Judge Gary S. Austin on 03/31/2014. (Flores, E)

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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.
L. L. SCHULTEIS, et al.,

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1:08-cv-00615-LJO-GSA-PC
ORDER DENYING PLAINTIFF’S
SECOND REQUEST FOR ISSUANCE
OF SUBPOENA, WITHOUT
PREJUDICE
(Doc. 80.)

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 24, 2014, Plaintiff filed a request for the

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issuance of a subpoena. (Doc. 80.)

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II.

PLAINTIFF’S REQUEST

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Plaintiff requests the issuance of a subpoena duces tecum commanding non-party

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Timothy H. Delgado, counsel for Defendants, to provide the following documents and

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information:

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--

Any designated documents or electronically stored information including

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writings, drawings, graphs, charts, photographs, sound and video recordings,

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images, and other data compilations in regards to Plaintiff’s cell extraction 8-11-

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05; and

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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. (Doc. 80.)

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Discussion

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This is Plaintiff’s second request for the issuance of a subpoena duces tecum.

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Plaintiff’s first request, filed on March 3, 2014, was denied by the court on March 6, 2014,

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without prejudice to renewal of the request. (Docs. 76, 77.) Plaintiff was advised in the court’s

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order that “[i]f Plaintiff wishes to make another request for the issuance of a records subpoena,

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he 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.” (Id. at 2:13-16.) Plaintiff was also

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advised in the court’s order that “the Court will consider granting such a request only if the

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documents sought from the non-party are not equally available to Plaintiff and are not

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obtainable from Defendants through a request for production of documents [or from] Plaintiff’s

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central file at the prison, to which he is entitled to access.” (Id. at 2:8-12.)

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Plaintiff has not complied with the court’s order of March 6, 2014. Plaintiff’s second

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request for the issuance of a subpoena does not include a motion which makes a showing that

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the records he seeks are only obtainable through Defendants’ counsel, not equally available to
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Plaintiff, not obtainable from Defendants through a request for production of documents,1 and

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not obtainable from Plaintiff’s central file at the prison. Therefore, Plaintiff’s second request

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shall be denied. Plaintiff shall be granted leave to file another request in compliance with this

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order and the court’s order of March 6, 2014, if he so wishes.

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III.

CONCLUSION

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For the reasons set forth above, IT IS HEREBY ORDERED that:

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1.

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Plaintiff=s second request for the issuance of a subpoena, filed on March 24,
2014 is DENIED, without prejudice; and

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Plaintiff is granted leave to file another request for the issuance of a subpoena

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duces tecum if he so wishes, in compliance with this order and the court’s order

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of March 6, 2014.

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IT IS SO ORDERED.
Dated:

March 31, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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Plaintiff should refer to Rule 34 of the Federal Rules of Civil Procedure for guidance about requests for
production of documents. A request for production of documents should be addressed to a particular party, such
as one of the Defendants. Plaintiff may only request documents “which are in the possession, custody or control
of the party upon whom the request is served.@ Fed. R. Civ. P. 34(a)(1).
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