Garcia v. Folks et al

Filing 48

ORDER signed by Magistrate Judge Deborah Barnes on 12/12/2016 DENYING without prejudice plaintiff's 47 unclear request for forms. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RAUL GARCIA,

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No. 2:14-cv-2378 JAM DB P
Plaintiff,

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v.

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F. FOLKS, et al.,

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ORDER

Defendants.

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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 under 42 U.S.C. § 1983. On December 5, 2016, plaintiff filed a document in which he

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seeks forms for “duces tecum” from the court in order to “supena [sic] witnesses.” (ECF No. 47.)

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The court is not sure what plaintiff requests.

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If plaintiff seeks to obtain documents from a person who is not a party to this action, he

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must request the court issue a “subpoena duces tecum.” Because plaintiff is proceeding in forma

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pauperis, the court’s authorization of a subpoena duces tecum is subject to limitations. “Directing

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the Marshal’s Office to expend its resources to personally serve a subpoena is not taken lightly by

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the court.” Austin v. Winett, No. 1:04-cv-5104 DLB PC, 2008 WL 5213414, * 1 (E.D. Cal. Dec.

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12, 2008). In addition, the “Federal Rules of Civil Procedure were not intended to burden a non-

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party with a duty to suffer excessive or unusual expenses in order to comply with a subpoena

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duces tecum.” Badman v. Stark, 139 F.R.D. 601, 605 (M.D. Pa. 1991); see also United States v.
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Columbia Broad. Sys., Inc., 666 F.2d 364 (9th Cir. 1982) (court may award costs of compliance

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with subpoena to non-party). Therefore, in a request for issuance of a subpoena duces tecum,

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plaintiff must explain clearly who he seeks documents from, what documents he seeks, and why

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he can only obtain them from this person. See, e.g., Davis v. Ramen, No. 1:06-cv-1216 AWI-

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

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The purpose of a “subpoena” is to require the attendance of a person at a trial. See Fed. R.

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Civ. P. 45(a), (c). In the Discovery and Scheduling Order issued on October 11, 2016, the court

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described the procedures for obtaining the attendance of a witness at trial. (ECF No. 38 at 2-4.)

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Because no trial has been set in this matter, plaintiff has no basis for the issuance of a subpoena at

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this point.
Accordingly, plaintiff’s unclear request for forms (ECF No. 47) filed on December 5,

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2016 is denied without prejudice.

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Dated: December 12, 2016

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DLB:9
DLB1/prisoner-civil rights/garc2378.subp

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