Riley v. Tallerico et al

Filing 64

ORDER DENYING Plaintiff's 60 Motion for Issuance of Subpoenas Duces Tecum signed by Magistrate Judge Erica P. Grosjean on 2/8/2018. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SHANNON RILEY,

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Plaintiff,
v.
TALLERICO and YERRY,

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Case No. 1:16-cv-01189-AWI-EPG (PC)
ORDER DENYING PLAINTIFF’S
MOTION FOR ISSUANCE OF
SUBPOENAS DUCES TECUM
(ECF NO. 60)

Defendants.

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Shannon Riley (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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in this civil rights action filed pursuant to 42 U.S.C. § 1983. This case is now proceeding on

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Plaintiff’s “claim against Officer Yerry for violation of Plaintiff’s Fourteenth Amendment

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rights to equal protection related to the May 16, 2015 incident, his claim for retaliation in

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violation of the First Amendment against Officer Yerry regarding the cell search, his claim

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against Defendant Tallerico for retaliation in violation of the First Amendment, and his claims

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against Officer Yerry for violation of the Eighth Amendment.” (ECF No. 62, pgs. 3-4).

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On February 7, 2018, Plaintiff filed a motion for the issuance of third party subpoenas.

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(ECF No. 60).1 Plaintiff requests that he be allowed to issue subpoenas to S. Henderson

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(Captain), Arlitz (Associate Warden), Biter (Warden), Aguilar (Correctional Officer), Machado

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In the title of his motion, Plaintiff cites to Federal Rule of Civil Procedure 26(b)(1). However, it is
Federal Rule of Civil Procedure 45 that deals with the issuance of subpoenas.

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Plaintiff’s document request

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(Correctional Officer), and D. Stebbins (Associate Warden).

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largely focuses on letters that he sent to Warden Biter, as well as the responses he received.

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“A command in a subpoena to produce documents, electronically stored information, or

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tangible things requires the responding person to permit inspection, copying, testing, or

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sampling of the materials.” Fed. R. Civ. P. 45(a)(1)(D). “If the subpoena commands the

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production of documents, electronically stored information, or tangible things or the inspection

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of premises before trial, then before it is served on the person to whom it is directed, a notice

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and a copy of the subpoena must be served on each party.” Fed. R. Civ. P. 45(a)(4).

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Under Rule 26 of the Federal Rules of Civil Procedure, “[p]arties may obtain discovery

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regarding any non-privileged matter that is relevant to any party's claim or defense and

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proportional to the needs of the case, considering the importance of the issues at stake in the

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action, the amount in controversy, the parties’ relative access to relevant information, the

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parties’ resources, the importance of the discovery in resolving the issues, and whether the

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burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P.

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26(b)(1). “Information within this scope of discovery need not be admissible in evidence to be

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discoverable.” Id.

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Plaintiff’s motion will be denied without prejudice to Plaintiff refiling this motion once

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he has complied with the applicable requirements. Plaintiff has failed to make a showing that

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the requested records are only available through the third parties. (See ECF No. 59, pgs. 3-4).

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Given that discovery was opened less than two weeks before Plaintiff filed this motion (ECF

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No. 59, p. 2) it appears that Plaintiff did not even attempt to see if Defendants had access to the

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documents he is requesting before filing this motion. Plaintiff shall request these documents

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from Defendants and refile the request if Defendants cannot or refuse to provide the requested

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material.

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To the extent Defendants object to the request on the basis that documents held by the

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CDCR are outside their possession, custody and control and require a third party subpoena,

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defendants shall make this objections as promptly as possible.

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The Court also notes that Plaintiff may not request “information” in a subpoena
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(Plaintiff states on numerous occasions in the motion that he is seeking “information”).

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Plaintiff may only ask that the third party produce documents, electronically stored

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information, or tangible things. Fed. R. Civ. P. 45. If Plaintiff refiles this motion, he should

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identify with specificity the documents, electronically stored information, or tangible things

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that he wants the target of the subpoena to produce.

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Accordingly, based on the foregoing, it is HEREBY ORDERED that Plaintiff’s motion
for the issuance of third party subpoenas is DENIED without prejudice.

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IT IS SO ORDERED.
Dated:

February 8, 2018

/s/
UNITED STATES MAGISTRATE JUDGE

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