Millner v. Biter

Filing 67

ORDER DENYING, Without Prejudice, Plaintiff's 66 Motion for Subpoenas signed by Magistrate Judge Stanley A. Boone on 6/15/2015. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES W. MILLNER,

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Plaintiff,

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v.
MARTIN BITER, et al.,

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Defendants.

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Case No.: 1:13-cv-02029-SAB (PC)
ORDER DENYING, WITHOUT PREJUDICE,
PLAINTIFF’S MOTION FOR SUBPOENAS
[ECF No. 66]

Plaintiff James W. Millner is appearing pro se in this civil rights action pursuant to 42 U.S.C. §

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1983.
Now pending before the Court is Plaintiff’s motion for issuance of subpoena duces tecum.

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(ECF No. 66.) Defendants filed an answer to Plaintiff’s complaint on May 5, 2015, and on this same

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date the Court issued the discovery and scheduling order.

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

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the production of documents, electronically stored information, and/or tangible things from a

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nonparty, Fed. R. Civ. P. 45, and to service of the subpoena by the United States Marshal, 28 U.S.C.

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1915(d). However, the Court will consider granting such a request only if the documents or items

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sought from the nonparty are not equally available to Plaintiff and are not obtainable 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. Fed. R. Civ. P. 34. If Defendants object to Plaintiff’s discovery request, a motion to compel is
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the next required step. If the Court rules that the documents, electronically stored information, and/or

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tangible things are discoverable but Defendants do not have care, custody, and control of them,

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Plaintiff may then seek a subpoena. Fed. R. Civ. P. 26(b), 34(a)(1). Alternatively, if the Court rules

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that the documents or items are not discoverable, the inquiry ends. Fed. R. Civ. P. 26(b).

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In this instance, Plaintiff does not indicate what documents are sought or that he sought such

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documents from Defendants through a request for the production of documents, and, if he has done so,

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he has not filed a motion to compel the production of such documents. Therefore, Plaintiff’s motion

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for the issuance of a subpoena duces tecum is HEREBY DENIED, without prejudice.

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IT IS SO ORDERED.

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Dated:

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June 15, 2015
UNITED STATES MAGISTRATE JUDGE

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