McCoy v. Kelso, et al.

Filing 140

ORDER DENYING Plaintiff's 139 Motion for Subpoena, signed by Magistrate Judge Stanley A. Boone on 6/3/19. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSEPH RAYMOND MCCOY,

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Plaintiff,

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v.
STRONACH, et al.,

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Defendants.

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Case No.: 1:12-cv-000983-AWI-SAB (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR SUBPOENA
[ECF No. 139]

Plaintiff Joseph Raymond McCoy is appearing pro se and in forma pauperis in this civil rights

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action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff’s claim that Defendants

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Stronach, Gonzales, LeMay, Beltran, Fisher, Snell and Tran were deliberately indifferent to his

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medical needs in violation of the Eighth Amendment.
On May 31, 2019, Plaintiff filed a request for subpoena. In accordance with the general

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practice in cases such as this, the request was filed as a motion.1
This case is currently in the discovery phase and the deadline for the completion of all

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discovery is set for October 2, 2019. Subject to certain requirements, Plaintiff is entitled to the

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issuance of a subpoena commanding the production of documents, electronically stored information,

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Because Plaintiff lacks entitlement to the subpoena duces tecum and there is no prejudice to Defendants, the Court elects
to resolve the motion without waiting for Defendants to file a response. Local Rule 230(l).

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and/or tangible things from a nonparty, Fed. R. Civ. P. 45, and to service of the subpoena by the

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United States Marshal, 28 U.S.C. 1915(d). However, the Court will consider granting such a request

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only if the documents or items sought from the nonparty are not equally available to Plaintiff and are

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not obtainable from Defendants through a request for the production of documents, electronically

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stored information, and/or tangible things. Fed. R. Civ. P. 34. If Defendants object to Plaintiff’s

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discovery request, a motion to compel is the next required step. If the Court rules that the documents,

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electronically stored information, and/or tangible things are discoverable but Defendants do not have

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care, custody, and control of them, Plaintiff may then seek a subpoena. Fed. R. Civ. P. 26(b), 34(a)(1).

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

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Fed. R. Civ. P. 26(b).
In this instance, Plaintiff has not demonstrated that he sought the information from Defendants

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through a request for the production of documents, electronically stored information, and/or tangible

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things, and, if he has done so, he has not filed a motion to compel the production of the information.

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Plaintiff is advised that discovery requests between the parties are not to be filed with the Court, unless

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and until there is a dispute. Accordingly, Plaintiff’s motion for the issuance of a subpoena is

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HEREBY DENIED, without prejudice.

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IT IS SO ORDERED.

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Dated:

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June 3, 2019
UNITED STATES MAGISTRATE JUDGE

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