Heilman v. Sanchez

Filing 117

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)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

THOMAS HEILMAN,

12
13
14
15

No. 2:10-cv-1120 JAM DB P

Plaintiff,
v.

ORDER

L. SANCHEZ,
Defendant.

16
17

Plaintiff is a state prisoner, proceeding pro se and in forma pauperis, with a civil rights

18

action pursuant to 42 U.S.C. §1983. Pending before the court are plaintiff’s four motions for

19

subpoena duces tecum. (ECF Nos. 110; 111; 112; 114.) For the following reasons, the motions

20

are denied without prejudice.

21

LEGAL STANDARD

22

A pro se party may request the issuance of a subpoena duces tecum commanding the

23

production of documents from a non-party. Fed. R. Civ. P. 34(c), 45. A plaintiff proceeding in

24

forma pauperis, is generally entitled to have a U.S. Marshal serve any subpoena duces tecum

25

issued by the court. 28 U.S.C. § 1915(d). “Directing the Marshal’s Office to expend its resources

26

personally serving a subpoena is not taken lightly by the court.” Austin v. Winett, 1:04-cv-

27

05104-DLB PC, 2008 WL 5213414, *1 (E.D. Cal. Dec. 12, 2008). The court will only grant such

28

requests when the documents sought from the non-party are not equally available to the plaintiff
1

1

and are not obtainable from the defendant through a request for production. Fed. R. Civ. P. 34.

2

Therefore, any motion requesting a subpoena duces tecum must (1) identify with specificity the

3

documents sought and from whom, and (2) make a showing that the requested documents can

4

only be obtained through the non-party. Davis v. Ramen, 1:06-cv-01216-AWI-SKO PC, 2010

5

WL 1948560, at *1 (E.D. Cal. May 11, 2010).

6

DISCUSSION

7

Plaintiff’s requests for subpoenas duces tecum against a non-party have failed to meet the

8

legal standards outlined above. Plaintiff’s first three requests ask only for a “signed but otherwise

9

blank subpoena duces tecum form.” (ECF Nos. 110; 111; 112.) While plaintiff’s fourth request

10

identifies the non-party for whom the subpoena is requested (“the CDCR Warden Representative

11

at the Calif. Medical Facility Prison (CMF) in Vacaville, Calif.”), it fails to identify with any

12

specificity the documents sought. (ECF No. 114.) Additionally, it fails to make a showing that

13

the requested documents are only obtainable from the CDCR Warden Representative.

14

Accordingly, plaintiff’s request for subpoenas duces tecum are deficient and must be denied

15

without prejudice. Plaintiff is permitted to file a new motion that complies with the requirements

16

of the federal rules of civil procedure.

17

Should plaintiff choose to file a new motion as to the CDCR Warden Representative, the

18

motion should clearly and specifically identify the documents, records, or information sought.

19

Additionally, plaintiff must show the documents, records, or information sought can only be

20

obtained from the identified non-party.

21

Accordingly, IT IS HEREBY ORDERED that plaintiff’s motions for issuance of

22

subpoenas (ECF Nos. 110; 111; 112; 114) are denied without prejudice.

23

Dated: June 19, 2017

24
25
26
27
28

TIM-DLB:10

2

1

DB / ORDERS / ORDERS.PRISONER.CIVIL.RIGHTS / heil.1120.subpoena

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3