Baker v. Moreno, et al.
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)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
TOMMIE LEE BAKER, III,
MORENO, et al.,
Case No. 1:16-cv-01758-AWI-SKO (PC)
ORDER DENYING PLAINTIFF’S MOTION FOR
SUBPOENA DUCES TECUM WITHOUT
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
and Scheduling Order issued, which commenced discovery in this case. (Doc. 18.) On that same
day, Plaintiff filed a motion seeking “five (5) subpoena duces tecum to serve on third parties.”
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
from Defendants through a request for the production of documents, electronically stored
information, and/or tangible things. Fed. R. Civ. P. 34. If Defendants object to Plaintiff’s
discovery request, a motion to compel is the next required step. If the Court rules that the items
Plaintiff seeks are discoverable, but Defendants do not have care, custody, and control of them,
Plaintiff may then seek a subpoena. Fed. R. Civ. P. 26(b), 34(a)(1). In that event, Plaintiff must
identify with specificity the documents sought and from whom. Alternatively, if the Court rules
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
tecum, filed on August 31, 2017, (Doc. 20), is DENIED without prejudice. Plaintiff shall engage
in regular discovery with Defendants, and may seek subpoenas only if appropriate following such
discovery as set forth above.
IT IS SO ORDERED.
September 13, 2017
Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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