Howard v. Deazevedo

Filing 20

ORDER denying 19 Motion for issuance of subpoena duces tecum as prematre. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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TIMOTHY HOWARD,

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CASE NO. 1:11-cv-00101-AWI-SKO PC

Plaintiff,

ORDER DENYING MOTION FOR ISSUANCE
OF SUBPOENA DUCES TECUM AS
PREMATURE

v.
D. L. DeAZEVEDO, et al.,

(Doc. 19)

Defendants.
/

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Plaintiff Timothy Howard, a state prisoner proceeding pro se and in forma pauperis, filed this

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civil rights action pursuant to 42 U.S.C. § 1983 on January 20, 2011. On May 3, 2012, Plaintiff filed

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a motion seeking the issuance of a subpoena duces tecum to non-party Kathleen Allison.

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The discovery phase of this litigation is not yet open. Therefore, Plaintiff’s motion is

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premature and it shall be denied. Plaintiff is directed to paragraph 8 of the First Informational Order,

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filed on January 20, 2011.

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Once discovery is open, Plaintiff is informed of the following requirements. Plaintiff may

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be entitled to the issuance of a subpoena commanding the production of documents from a non-party,

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Fed. R. Civ. P. 45, and to service of the subpoena by the United States Marshal, 28 U.S.C. 1915(d).

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However, the Court will consider granting such a request only if the documents sought from the non-

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party are not equally available to Plaintiff and are not obtainable from Defendant through a request

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for the production of documents. Fed. R. Civ. P. 34. If Plaintiff wishes to make a request for the

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issuance of a records subpoena, he may file a motion requesting the issuance of a subpoena duces

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tecum that (1) identifies with specificity the documents sought and from whom, and (2) makes a

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showing in the motion that the records are only obtainable through that third party.
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As set forth above, Plaintiff’s motion for the issuance of a subpoena duces tecum is
premature and it is HEREBY DENIED on that ground.

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IT IS SO ORDERED.

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Dated:
ie14hj

May 10, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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