Johnson v. Ho et al
ORDER Denying 19 Plaintiff's Request for Subpoena, signed by Magistrate Judge Dennis L. Beck on 5/19/14. (Verduzco, M)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
MOLINA, et al.,
Case No. 1:13-cv-00647 LJO DLB PC
ORDER DENYING PLAINTIFF’S
REQUEST FOR SUBPOENA
Plaintiff Vincent Johnson (“Plaintiff”), a state prisoner proceeding pro se and in forma
pauperis, filed this civil rights action on May 3, 2013. The action is currently in discovery.
On May 9, 2014, Plaintiff filed a request for the issuance of a subpoena duces tecum
directing the California Institution for Men and Pleasant Valley State Prison to produce custody
records, medical records, booking records, housing records and transfer records. Plaintiff also
requests incident reports, personal alarm recordings, transmitted messages from correctional officers
and CDCR inmate tracking slips for inmates housed at Pleasant Valley from July 2012 to the
As an initial matter, Plaintiff states that he needs these records to comply with the Court’s
initial disclosure requirement. However, Plaintiff need not conduct discovery to obtain documents
for disclosure. Plaintiff is only required to produce relevant documents in his possession. Property
is deemed within a party’s possession, custody or control if the party has actual possession, custody
or control thereof, or the legal right to obtain the property on demand. Allen v. Woodford, 2007 WL
309945, *2 (E.D. Cal. 2007).
Second, Plaintiff would not be entitled to a subpoena at this time. Subject to certain
requirements, Plaintiff is entitled to the issuance of a subpoena commanding the production of
documents, electronically stored information, and/or tangible things from a nonparty, Fed. R. Civ. P.
45, and to service of the subpoena by the United States Marshal, 28 U.S.C. 1915(d). However, the
Court will consider granting such a request only if the documents or items sought from the nonparty
are not equally available to Plaintiff and are not obtainable from Defendants through a request for
the production of documents, electronically stored information, and/or tangible things. Fed. R. Civ.
P. 34. If Defendants object to Plaintiff’s discovery request, a motion to compel is the next required
step. If the Court rules that the documents, electronically stored information, and/or tangible things
are discoverable but Defendants do not have care, custody, and control of them, Plaintiff may then
seek a subpoena. Fed. R. Civ. P. 26(b), 34(a)(1). Alternatively, if the Court rules that the documents
or items are not discoverable, the inquiry ends. Fed. R. Civ. P. 26(b).
Here, some of the documents requested may be available to Plaintiff. To the extent that they
are not, Plaintiff has not yet requested the documents from Defendants. The Court will not issue a
subpoena unless Plaintiff is unable to obtain the documents through the methods above.
Accordingly, Plaintiff’s motion is DENIED.
IT IS SO ORDERED.
May 19, 2014
UNITED STATES MAGISTRATE JUDGE
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