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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 MONICO J. QUIROGA III, 11 Plaintiff, 12 13 v. 1:16-cv-00234-DAD-GSA-PC ORDER DENYING MOTION FOR ISSUANCE OF SUBPOENA (ECF No. 38.) SERGEANT GRAVES, et al., 14 Defendants. 15 16 17 I. BACKGROUND 18 Monico J. Quiroga III (“Plaintiff”) is a prisoner proceeding pro se and in forma 19 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On February 19, 2016, 20 Plaintiff filed the Complaint commencing this action. (ECF No. 1.) Plaintiff’s Third Amended 21 Complaint, filed on March 30, 2018, awaits the court’s requisite screening under 28 U.S.C. § 22 1915A. (ECF No. 39.) 23 On March 30, 2018, Plaintiff filed a motion for issuance of a subpoena duces tecum. 24 (ECF No. 38.) 25 II. PLAINTIF’S MOTION FOR ISSUANCE OF SUBPOENA 26 Plaintiff requests issuance of a subpoena duces tecum commanding production of 27 documents and video footage from a non-party, and service of the subpoena by the U.S. 28 Marshal. 1 1 Plaintiff’s motion is denied as discovery has not yet been opened in this case. When the 2 case is ready for discovery the court will issue a scheduling order opening discovery. 3 Discovery will not be opened until after the complaint has been served and one or more of the 4 defendants has filed an answer to the complaint. Therefore, it is not time for discovery in this 5 case, and Plaintiff’s motion for issuance of a subpoena shall be denied. 6 Moreover, Plaintiff is advised that when discovery is opened, the court will consider 7 granting a subpoena seeking documents from a non-party only if the documents sought from the 8 non-party are not equally available to Plaintiff and are not obtainable from Defendants through 9 a request for production of documents. Fed. R. Civ. P. 34. 10 11 12 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. 13 14 15 16 IT IS SO ORDERED. Dated: April 16, 2018 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 2

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