Quiroga v. Graves et al

Filing 40

ORDER DENYING 38 Motion for Issuance of Subpoena, signed by Magistrate Judge Gary S. Austin on 04/16/18. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MONICO J. QUIROGA III,

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Plaintiff,

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v.

1:16-cv-00234-DAD-GSA-PC
ORDER DENYING MOTION FOR
ISSUANCE OF SUBPOENA
(ECF No. 38.)

SERGEANT GRAVES, et al.,

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Defendants.

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I.

BACKGROUND

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Monico J. Quiroga III (“Plaintiff”) is a prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On February 19, 2016,

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Plaintiff filed the Complaint commencing this action. (ECF No. 1.) Plaintiff’s Third Amended

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Complaint, filed on March 30, 2018, awaits the court’s requisite screening under 28 U.S.C. §

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1915A. (ECF No. 39.)

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On March 30, 2018, Plaintiff filed a motion for issuance of a subpoena duces tecum.

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(ECF No. 38.)

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II.

PLAINTIF’S MOTION FOR ISSUANCE OF SUBPOENA

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Plaintiff requests issuance of a subpoena duces tecum commanding production of

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documents and video footage from a non-party, and service of the subpoena by the U.S.

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Marshal.
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Plaintiff’s motion is denied as discovery has not yet been opened in this case. When the

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case is ready for discovery the court will issue a scheduling order opening discovery.

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Discovery will not be opened until after the complaint has been served and one or more of the

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defendants has filed an answer to the complaint. Therefore, it is not time for discovery in this

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case, and Plaintiff’s motion for issuance of a subpoena shall be denied.

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Moreover, Plaintiff is advised that when discovery is opened, the court will consider

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granting a subpoena seeking documents from a non-party only if the documents sought from the

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non-party are not equally available to Plaintiff and are not obtainable from Defendants through

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a request for production of documents. Fed. R. Civ. P. 34.

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III.

CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion for

issuance of a subpoena, filed on March 30. 2018, is DENIED.

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IT IS SO ORDERED.
Dated:

April 16, 2018

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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