Brown v. Harris et al

Filing 25

ORDER DENYING 24 Plaintiff's Motion for Issuance of Subpoena, Without Prejudice signed by Magistrate Judge Gary S. Austin on 12/19/2013. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CORNELL BROWN,

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Plaintiff,

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1:12-cv-01472-GSA-PC
ORDER DENYING MOTION FOR
ISSUANCE OF SUBPOENA, WITHOUT
PREJUDICE
(Doc. 24.)

vs.
C/O R. HARRIS, et al.,
Defendants.

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Cornell Brown (APlaintiff@) is a state prisoner proceeding pro se and in forma pauperis

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with this civil rights action filed pursuant to 42 U.S.C. ' 1983. Plaintiff has consented to

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Magistrate Judge jurisdiction in this action. (Doc. 5.) This case now proceeds on Plaintiff’s

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initial Complaint filed on September 10, 2012, against defendant Harris for excessive force in

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violation of the Eighth Amendment, and defendant Nelson for failure to protect Plaintiff in

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violation of the Eighth Amendment. (Doc. 1.)

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On December 18, 2013, Plaintiff filed a motion for issuance of a subpoena duces tecum

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upon a non-party to this action. (Doc. 24.) Discovery is not yet open in this action. Plaintiff is

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advised that the court will issue a scheduling order setting a schedule for discovery after one of

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the defendants has filed an Answer to the Complaint.

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Defendants have filed a motion to dismiss, but no defendant has filed an Answer to the

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Complaint. Therefore, it is not time for discovery in this action, and Plaintiff’s motion for
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At this stage of the proceedings,

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issuance of a subpoena shall be denied, without prejudice to renewal of the motion at a later

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stage of the proceedings.

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Plaintiff is entitled to the issuance of a subpoena commanding the production of

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documents from non-parties, and to service of the subpoena by the United States Marshal. Fed.

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R. Civ. P. 45; 28 U.S.C. 1915(d). However, the Court will consider granting such a request

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only if the documents sought from the non-party are not equally available to Plaintiff and are

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not obtainable from Defendants through a request for production of documents. Fed. R. Civ. P.

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34. Therefore, if Plaintiff decides to renew his motion after discovery has been opened, he may

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file another motion that (1) identifies with specificity the documents sought and from whom,

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and (2) makes a showing in the motion that the records are only obtainable through that third

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party.

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For the reasons set forth above, IT IS HEREBY ORDERED that Plaintiff=s motion for
the issuance of a subpoena, filed on December 18, 2013, is DENIED without prejudice.

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IT IS SO ORDERED.

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Dated:

December 19, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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