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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAVID ESTRADA,

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Plaintiff,

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v.
TERESA MACIS, et al.,

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Defendants.

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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

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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

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deliberate indifference to a serious medical need.

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On June 7, 2017, Plaintiff filed a motion for the issuance of a subpoena duces tecum to be

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served on third-party Derrell Stevenson commanding the production of documentation he may hve

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received from the California Department of Corrections and Rehabilitation relating to an investigation

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of Licensed Vocational Nurse Tassey.1

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This case is currently in the discovery phase and the deadline for the completion of all

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discovery is set for August 25, 2017. Subject to certain requirements, Plaintiff is entitled to the

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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).

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issuance of a subpoena commanding the production of documents, electronically stored information,

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and/or tangible things from a nonparty, Fed. R. Civ. P. 45, and to service of the subpoena by the

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United States Marshal, 28 U.S.C. 1915(d). However, the Court will consider granting such a request

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only if the documents or items sought from the nonparty are not equally available to Plaintiff and are

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not obtainable from Defendants through a request for the production of documents, electronically

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stored information, and/or tangible things. Fed. R. Civ. P. 34. If Defendants object to Plaintiff’s

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discovery request, a motion to compel is the next required step. If the Court rules that the documents,

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electronically stored information, and/or tangible things are discoverable but Defendants do not have

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care, custody, and control of them, Plaintiff may then seek a subpoena. Fed. R. Civ. P. 26(b), 34(a)(1).

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Alternatively, if the Court rules that the documents or items are not discoverable, the inquiry ends.

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Fed. R. Civ. P. 26(b).

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In this instance, Plaintiff has not demonstrated that he sought the documentation from

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Defendants through a request for the production of documents, electronically stored information,

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and/or tangible things, and, if he has done so, he has not filed a motion to compel the production of

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such documentation. Therefore, Plaintiff’s motion for the issuance of a subpoena duces tecum is

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HEREBY DENIED as premature, without prejudice to renewal if necessary.

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IT IS SO ORDERED.

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Dated:

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June 9, 2017
UNITED STATES MAGISTRATE JUDGE

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