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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSEPH RAYMOND MCCOY, 12 Plaintiff, 13 14 v. STRONACH, et al., 15 Defendants. 16 ) ) ) ) ) ) ) ) ) ) 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 17 18 action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff’s claim that Defendants 19 Stronach, Gonzales, LeMay, Beltran, Fisher, Snell and Tran were deliberately indifferent to his 20 medical needs in violation of the Eighth Amendment. On May 31, 2019, Plaintiff filed a request for subpoena. In accordance with the general 21 22 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 23 24 discovery is set for October 2, 2019. Subject to certain requirements, Plaintiff is entitled to the 25 issuance of a subpoena commanding the production of documents, electronically stored information, 26 27 1 28 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). 1 1 and/or tangible things from a nonparty, Fed. R. Civ. P. 45, and to service of the subpoena by the 2 United States Marshal, 28 U.S.C. 1915(d). However, the Court will consider granting such a request 3 only if the documents or items sought from the nonparty are not equally available to Plaintiff and are 4 not obtainable from Defendants through a request for the production of documents, electronically 5 stored information, and/or tangible things. Fed. R. Civ. P. 34. If Defendants object to Plaintiff’s 6 discovery request, a motion to compel is the next required step. If the Court rules that the documents, 7 electronically stored information, and/or tangible things are discoverable but Defendants do not have 8 care, custody, and control of them, Plaintiff may then seek a subpoena. Fed. R. Civ. P. 26(b), 34(a)(1). 9 Alternatively, if the Court rules that the documents or items are not discoverable, the inquiry ends. 10 Fed. R. Civ. P. 26(b). In this instance, Plaintiff has not demonstrated that he sought the information from Defendants 11 12 through a request for the production of documents, electronically stored information, and/or tangible 13 things, and, if he has done so, he has not filed a motion to compel the production of the information. 14 Plaintiff is advised that discovery requests between the parties are not to be filed with the Court, unless 15 and until there is a dispute. Accordingly, Plaintiff’s motion for the issuance of a subpoena is 16 HEREBY DENIED, without prejudice. 17 18 IT IS SO ORDERED. 19 Dated: 20 June 3, 2019 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 2

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