Estrada v. Macias et al

Filing 101

ORDER denying 98 Motion for issuance of Subpoena Duces Tecum signed by Magistrate Judge Stanley A. Boone on 6/9/2017. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID ESTRADA, 12 Plaintiff, 13 14 v. TERESA MACIS, et al., 15 Defendants. 16 ORDER DENYING, WITHOUT PREJUDICE, PLAINTIFF’S MOTION FOR ISSUANCE OF SUBPOENA DUCES TECUM [ECF No. 98] pursuant to 42 U.S.C. § 1983. This action is proceeding against Defendants Garnett, Flores, Vikjord and Whitford for 19 20 Case No.: 1:15-cv-01292-AWI-SAB (PC) Plaintiff David Estrada is appearing pro se and in forma pauperis in this civil rights action 17 18 ) ) ) ) ) ) ) ) ) ) deliberate indifference to a serious medical need. 21 On June 7, 2017, Plaintiff filed a motion for the issuance of a subpoena duces tecum to be 22 served on third-party Derrell Stevenson commanding the production of documentation he may hve 23 received from the California Department of Corrections and Rehabilitation relating to an investigation 24 of Licensed Vocational Nurse Tassey.1 25 This case is currently in the discovery phase and the deadline for the completion of all 26 discovery is set for August 25, 2017. Subject to certain requirements, Plaintiff is entitled to the 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 issuance of a subpoena commanding the production of documents, electronically stored information, 2 and/or tangible things from a nonparty, Fed. R. Civ. P. 45, and to service of the subpoena by the 3 United States Marshal, 28 U.S.C. 1915(d). However, the Court will consider granting such a request 4 only if the documents or items sought from the nonparty are not equally available to Plaintiff and are 5 not obtainable from Defendants through a request for the production of documents, electronically 6 stored information, and/or tangible things. Fed. R. Civ. P. 34. If Defendants object to Plaintiff’s 7 discovery request, a motion to compel is the next required step. If the Court rules that the documents, 8 electronically stored information, and/or tangible things are discoverable but Defendants do not have 9 care, custody, and control of them, Plaintiff may then seek a subpoena. Fed. R. Civ. P. 26(b), 34(a)(1). 10 Alternatively, if the Court rules that the documents or items are not discoverable, the inquiry ends. 11 Fed. R. Civ. P. 26(b). 12 In this instance, Plaintiff has not demonstrated that he sought the documentation from 13 Defendants through a request for the production of documents, electronically stored information, 14 and/or tangible things, and, if he has done so, he has not filed a motion to compel the production of 15 such documentation. Therefore, Plaintiff’s motion for the issuance of a subpoena duces tecum is 16 HEREBY DENIED as premature, without prejudice to renewal if necessary. 17 18 IT IS SO ORDERED. 19 Dated: 20 June 9, 2017 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 2

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