Johnson v. Cate et al

Filing 54

ORDER DENYING without prejudice to refiling consistent with the above standards 52 Motion for Marshal's Service of Subpoena Duces Tecum ; ORDER DIRECTING the Clerk of the Court to Refund Plaintiff $8.00 payment he made to the Court, signed by Magistrate Judge Michael J. Seng on 04/17/2014. (copy of this order forwarded to Sac -Financial) (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GARRISON S. JOHNSON,

Case No. 1:10-cv-02348-LJO-MJS (PC)

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Plaintiff,

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v.

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ORDER DENYING PLAINTIFF’S MOTION
FOR MARSHAL’S SERVICE OF
SUBPOENA DUCES TECUM
(ECF No. 52)

CATE, et al.,
CLERK TO REFUND PLAINTIFF $8

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Defendants.

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Plaintiff is a state prisoner proceeding pro se in this civil rights action filed pursuant

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to 42 U.S.C. § 1983. The action proceeds on an equal protection claim against Defendant

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Doran, Inmate Assignment Lieutenant at Kern Valley State Prison.
Before the Court is Plaintiff’s motion that the United States Marshal serve a

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subpoena duces tecum provided with his motion upon nonparty, the Secretary of the

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California Department of Corrections and Rehabilitation (“CDCR”). The subpoena provides

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for production and copying, by Plaintiff at California State Prison-Lancaster, of specified

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categories of documents and electronically stored information. Plaintiff also submitted an

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$8 payment to cover service costs.

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I.

DISCUSSION
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A.

Discovery Subpoena

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Subject to certain requirements, Plaintiff is entitled to the issuance of a subpoena

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commanding the production of documents or electronically stored information from a

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nonparty, Fed. R. Civ. P. 34(c); Fed. R. Civ. P. 45, relevant to his claim. Fed. R. Civ. P.

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26(b).

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However, the Court will consider granting such a request only if the documents or

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electronically stored information sought from the nonparty are not equally available to

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Plaintiff and are not obtainable from Defendant through a request for the production. Fed.

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R. Civ. P. 34. If Defendant objects to Plaintiff's discovery request, a motion to compel is the

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next required step. If the Court rules that the documents or electronically stored information

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are discoverable but Defendant does not have care, custody, and control of them, Plaintiff

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may then seek a subpoena of a nonparty. Alternatively, if the Court rules that the

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documents and electronically stored information are not discoverable, the inquiry ends.

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The Court will not issue a subpoena for a nonparty individual without Plaintiff first

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following the procedure outlined above. Here the request for documents and electronically

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stored information attached to the subpoena appears to be directed to the Defendant.

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However it is unclear whether it has been served upon Defendant and if so how he

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responded, if at all.

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Plaintiff should note issuance of a subpoena for production of documents or

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electronically stored information is limited to a place within 100 miles of where the person

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resides, is employed, or regularly transacts business in person. Fed. R. Civ. P. 45(c)(2)(A).

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It does not appear Plaintiff’s proffered subpoena meets this requirement.

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B.

Service by Marshal

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Plaintiff is not proceeding in forma pauperis (“IFP”) and is not entitled to Marshal’s

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service of the subpoena under the IFP statute. 28 U.S.C. § 1915(d). He asserts that

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Marshal’s service is appropriate under 28 U.S.C. § 1921. That statute does not support his

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position because it allows only for collection of fees by the Marshal. He offers no other

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basis for the Marshal to serve his subpoena.
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It is Plaintiff’s responsibility to serve discovery. The previously issued Discovery and

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Scheduling Order provides that “discovery requests are to be served by the parties

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pursuant to Federal Rule of Civil Procedure 5, 7, 11, 16, 26-36, and Local Rule 135; they

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are to be filed when required by Local Rules 250.2, 250.3, and 250.4.” (ECF No. 48, at

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1:19-2:9.)
Nothing before the Court suggests Plaintiff cannot serve discovery.

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II.

CONCLUSION AND ORDER
Plaintiff has not demonstrated that he needs and is entitled to Marshal’s service of a

discovery subpoena.

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Accordingly, for the reasons stated, it is HEREBY ORDERED that:

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1.

Plaintiff’s motion for Marshal’s service of subpoena duces tecum (ECF No.

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52) is DENIED without prejudice to refiling consistent with the above

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standards, and

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2.

The Clerk of the Court is directed to refund to Plaintiff the $8 payment he
made to the Court.

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IT IS SO ORDERED.
Dated:

April 17, 2014

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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