Heilman v. Sanchez
Filing
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ORDER signed by Magistrate Judge Deborah Barnes on 06/19/17 ordering that plaintiff's motions for issuance of subpoenas 110 , 111 , 112 and 114 are denied without prejudice. (Plummer, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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THOMAS HEILMAN,
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No. 2:10-cv-1120 JAM DB P
Plaintiff,
v.
ORDER
L. SANCHEZ,
Defendant.
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Plaintiff is a state prisoner, proceeding pro se and in forma pauperis, with a civil rights
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action pursuant to 42 U.S.C. §1983. Pending before the court are plaintiff’s four motions for
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subpoena duces tecum. (ECF Nos. 110; 111; 112; 114.) For the following reasons, the motions
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are denied without prejudice.
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LEGAL STANDARD
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A pro se party may request the issuance of a subpoena duces tecum commanding the
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production of documents from a non-party. Fed. R. Civ. P. 34(c), 45. A plaintiff proceeding in
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forma pauperis, is generally entitled to have a U.S. Marshal serve any subpoena duces tecum
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issued by the court. 28 U.S.C. § 1915(d). “Directing the Marshal’s Office to expend its resources
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personally serving a subpoena is not taken lightly by the court.” Austin v. Winett, 1:04-cv-
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05104-DLB PC, 2008 WL 5213414, *1 (E.D. Cal. Dec. 12, 2008). The court will only grant such
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requests when the documents sought from the non-party are not equally available to the plaintiff
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and are not obtainable from the defendant through a request for production. Fed. R. Civ. P. 34.
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Therefore, any motion requesting a subpoena duces tecum must (1) identify with specificity the
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documents sought and from whom, and (2) make a showing that the requested documents can
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only be obtained through the non-party. Davis v. Ramen, 1:06-cv-01216-AWI-SKO PC, 2010
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WL 1948560, at *1 (E.D. Cal. May 11, 2010).
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DISCUSSION
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Plaintiff’s requests for subpoenas duces tecum against a non-party have failed to meet the
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legal standards outlined above. Plaintiff’s first three requests ask only for a “signed but otherwise
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blank subpoena duces tecum form.” (ECF Nos. 110; 111; 112.) While plaintiff’s fourth request
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identifies the non-party for whom the subpoena is requested (“the CDCR Warden Representative
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at the Calif. Medical Facility Prison (CMF) in Vacaville, Calif.”), it fails to identify with any
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specificity the documents sought. (ECF No. 114.) Additionally, it fails to make a showing that
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the requested documents are only obtainable from the CDCR Warden Representative.
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Accordingly, plaintiff’s request for subpoenas duces tecum are deficient and must be denied
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without prejudice. Plaintiff is permitted to file a new motion that complies with the requirements
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of the federal rules of civil procedure.
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Should plaintiff choose to file a new motion as to the CDCR Warden Representative, the
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motion should clearly and specifically identify the documents, records, or information sought.
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Additionally, plaintiff must show the documents, records, or information sought can only be
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obtained from the identified non-party.
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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motions for issuance of
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subpoenas (ECF Nos. 110; 111; 112; 114) are denied without prejudice.
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Dated: June 19, 2017
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TIM-DLB:10
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DB / ORDERS / ORDERS.PRISONER.CIVIL.RIGHTS / heil.1120.subpoena
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