Baker v. Moreno, et al.

Filing 21

ORDER DENYING Plaintiff's 20 Motion for Subpoena Duces Tecum Without Prejudice, signed by Magistrate Judge Sheila K. Oberto on 9/13/17. (Marrujo, C)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 TOMMIE LEE BAKER, III, 9 Plaintiff, 10 v. 11 MORENO, et al., 12 Case No. 1:16-cv-01758-AWI-SKO (PC) ORDER DENYING PLAINTIFF’S MOTION FOR SUBPOENA DUCES TECUM WITHOUT PREJUDICE (Doc. 20) Defendants. 13 14 15 16 17 18 19 Plaintiff, Tommie Lee Baker, III, is a prisoner in the custody of the California Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The Complaint (Doc. 1) has been screened pursuant to 28 U.S.C. ' 1915A and found to state cognizable claims against Correctional Officers Raymond A. Moreno and Mark Evans, as well as Sergeant Choua Yang for retaliation in violation of the First Amendment. (Docs. 7, 9.) On August 30, 2017, the Discovery 20 and Scheduling Order issued, which commenced discovery in this case. (Doc. 18.) On that same 21 day, Plaintiff filed a motion seeking “five (5) subpoena duces tecum to serve on third parties.” 22 (Doc. 20.) 23 24 25 26 27 Subject to certain requirements, Plaintiff is entitled to the issuance of a subpoena commanding the production of documents, electronically stored information, and/or tangible things from a nonparty, Fed. R. Civ. P. 45, which will be served by the United States Marshal, 28 U.S.C. 1915(d). However, the Court will consider granting such a request only if the documents or items sought from the nonparty are not equally available to Plaintiff and are not obtainable 28 1 1 from Defendants through a request for the production of documents, electronically stored 2 information, and/or tangible things. Fed. R. Civ. P. 34. If Defendants object to Plaintiff’s 3 discovery request, a motion to compel is the next required step. If the Court rules that the items 4 Plaintiff seeks are discoverable, but Defendants do not have care, custody, and control of them, 5 Plaintiff may then seek a subpoena. Fed. R. Civ. P. 26(b), 34(a)(1). In that event, Plaintiff must 6 identify with specificity the documents sought and from whom. Alternatively, if the Court rules 7 that the documents or items are not discoverable, the inquiry ends. Fed. R. Civ. P. 26(b). Accordingly, it is HEREBY ORDERED that Plaintiff’s motion for five subpoenas duces 8 9 tecum, filed on August 31, 2017, (Doc. 20), is DENIED without prejudice. Plaintiff shall engage 10 in regular discovery with Defendants, and may seek subpoenas only if appropriate following such 11 discovery as set forth above. 12 13 IT IS SO ORDERED. 14 Dated: 15 September 13, 2017 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 2 .

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