Howard v. Deazevedo

Filing 43

ORDER DENYING Second 42 Motion for Issuance of Subpoena Duces Tecum, without Prejudice signed by Magistrate Judge Sheila K. Oberto on 3/7/2013. (Sant Agata, S)

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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 SECOND MOTION FOR
ISSUANCE OF SUBPOENAS DUCES
TECUM, WITHOUT PREJUDICE

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

(Doc. 42)

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. The discovery phase of this

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litigation is now open, and on March 4, 2013, Plaintiff filed his second motion seeking the issuance

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of subpoenas duces tecum. Fed. R. Civ. P. 45.

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Subject to certain requirements, Plaintiff is entitled to the issuance of subpoenas commanding

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the production of documents or tangible things from nonparties, Fed. R. Civ. P. 45, and to service

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of the subpoenas by the United States Marshal, 28 U.S.C. 1915(d). However, the Court will consider

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granting such a request only if the documents or tangible things sought from the nonparty are not

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

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production of documents or tangible things. Fed. R. Civ. P. 34. Once Defendants have objected to

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Plaintiff’s request for the production of documents, as is the situation here, a motion to compel is

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the next required step. If the Court rules that the documents or tangible things are discoverable but

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Defendants do not have possession, custody, and control of them, Plaintiff may then seek a

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subpoena. Alternatively, if the Court rules that the documents are not discoverable, the inquiry ends.

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Accordingly, Plaintiff’s second motion for the issuance of subpoenas duces tecum, filed on
March 4, 2013, is HEREBY DENIED, without prejudice.

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IT IS SO ORDERED.

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Dated:
ie14hj

March 7, 2013

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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