Leonard v. Denny, et al

Filing 60

ORDER signed by Magistrate Judge Allison Claire on 3/17/14 ORDERING that plaintiffs requests for blank subpoena duces tecum forms (ECF Nos. 49 , 52 , 59 ) are DENIED without prejudice based on plaintiffs lack of specificity as well as the fact that the requests are premature.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID G. LEONARD,

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No. 2:12-cv-00915-TLN-AC-P

Plaintiff,
v.

ORDER

JIM DENNY, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights

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action pursuant to 42 U.S.C. § 1983. Currently pending before the court are plaintiff’s seriatim

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requests for blank subpoena duces tecum forms. ECF Nos. 49, 52, 59. His cursory motions cite

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to Rule 45(a)(3) of the Federal Rules of Civil Procedure without any explanation as to what

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documents he seeks and from what non-party he seeks them from. Id. In fact, it is not even clear

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to the court how many blank subpoena duces tecum forms plaintiff is requesting. Compare ECF

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No. 59 (requesting five forms) with ECF No. 49 (requesting eight forms).

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A review of this court’s docket indicates that such a request is premature. Plaintiff has

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filed a first amended civil rights complaint which the court has yet to screen. See ECF No. 58.

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Therefore, it has not yet been determined who are proper parties to this action. Moreover, since

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defendants have not filed an answer to his civil rights complaint, no discovery and scheduling

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order has been entered by the court setting the deadlines by which discovery shall proceed. To
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the extent that plaintiff may be seeking to obtain records from named parties to this civil action,

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he is advised that such a request may be pursued once discovery commences pursuant to Rule 34

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of the Federal Rules of Civil Procedure. See Contardo v. Merrill Lynch, Pierce, Fenner & Smith,

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119 F.R.D. 622, 624 (D. Mass. 1988) (for purposes of discovery, Rule 34 is directed at parties

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and Rule 45 is directed at non-parties); Swartout v. LaNore, P.A., 2009 WL 1770540 (W.D.

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Mich. 2009) (same); 9A Wright and Miller: Federal Practice and Procedure section 2452 (1995)

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(stating that “Rule 45 has a close relation to the proper functioning of the discovery rules. Most

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notably, a subpoena is necessary to compel someone who is not a party to appear for the taking of

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the deposition.”). A person not a party to any civil action may be compelled to produce

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documents and things or to submit to an inspection as provided in Rule 45 of the Federal Rules of

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Civil Procedure.

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Should plaintiff choose to renew his request for blank subpoena forms, he is advised that

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the request must be specific enough to determine what plaintiff seeks. The request cannot be a

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broadly stated request that amounts to a fishing expedition. Furthermore, he will be responsible

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for serving the subpoena(s) through the United States Marshall Service and paying any cost

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associated therewith, coordinating the production of the documents, and paying any copying costs

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that might apply.

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Additionally, plaintiff is advised against filing seriatim and repetitious motions without

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first providing the court an opportunity to rule. An absence of a response to a pending motion

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from the court should not be interpreted as an invitation to file repetitious motions. The absence

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of a prompt response from the court is merely indicative of this court’s over-burdened docket.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s requests for blank subpoena

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duces tecum forms (ECF Nos. 49, 52, 59) are denied without prejudice based on plaintiff’s lack of

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specificity as well as the fact that the requests are premature.

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DATED: March 17, 2014

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