Thomas v. Ravera, et al.

Filing 31

ORDER signed by Magistrate Judge Allison Claire on 11/29/2017 ORDERING the Clerk to provide plaintiff a signed but otherwise blank subpoena duces tecum form with this order. Plaintiff's 30 motion for issuance of a subpoena and service by the USM is DENIED without prejudice to a motion that contains the required information and is accompanied by a completed subpoena that uses the proper form. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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REAGAN THOMAS,

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No. 2:15-cv-1936 KJM AC P

Plaintiff,

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v.

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RAVERA, et al.,

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ORDER

Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42

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U.S.C. § 1983. Currently before the court is plaintiff’s motion for issuance of a subpoena duces

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tecum and service of the subpoena by the United States Marshals. ECF No. 30. Plaintiff seeks to

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subpoena documents from the warden of High Desert State Prison (HDSP), who is not a party to

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this action. Id.

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A non-party may be compelled to produce documents for inspection and copying pursuant

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to a subpoena duces tecum. Fed. R. Civ. P. 34(c), 45(a). In order to do this, plaintiff must fill out

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subpoena forms and ensure that each person is served with the subpoena by a non-party. Fed. R.

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Civ. P. 45(b). If the person’s attendance is required, plaintiff must tender to each person “the fees

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for 1 day’s attendance and the mileage allowed by law.” Fed R. Civ. P. 45(b)(1). The current

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requisite fee for each person is forty dollars per day, 28 U.S.C. § 1821(b), and cannot be waived

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for a plaintiff proceeding in forma pauperis. Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993).
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Limitations on a subpoena include the relevance of the information sought as well as the

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burden and expense to the non-party in providing the requested information. Fed. R. Civ. P. 26,

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45. A motion for issuance of a subpoena duces tecum should be supported by clear identification

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of the documents sought and a showing that the records are obtainable only through the identified

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third-party. Davis v. Ramen, No. 1:06-cv-01216-AWI-SKO PC, 2010 WL 1948560, at *1, 2010

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U.S. Dist. LEXIS 115432, at *3 (E.D. Cal. May 11, 2010); Williams v. Adams, No. 1:05-cv-

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00124-AWI-SMS PC, 2010 WL 148703, at *1 (E.D. Cal. Jan. 14, 2010). “The Federal Rules of

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Civil Procedure were not intended to burden a non-party with a duty to suffer excessive or

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unusual expenses in order to comply with a subpoena duces tecum.” Badman v. Stark, 139

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F.R.D. 601, 605 (M.D. Pa. 1991) (citation omitted); see also, United States v. Columbia Broad.

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Sys., Inc., 666 F.2d 364, 368 (9th Cir. 1982) (court may award costs of compliance with subpoena

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to non-party). Non-parties are “entitled to have the benefit of this Court’s vigilance” in

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considering these factors. Badman, 139 F.R.D. at 605. Additionally, because Federal Rule of

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Civil Procedure 45(b) requires personal service of a subpoena, “[d]irecting the Marshal’s Office

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to expend its resources personally serving a subpoena is not taken lightly by the court.” Austin v.

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Winett, 1:04-cv-05104-DLB PC, 2008 WL 5213414, *1, 2008 U.S. Dist. LEXIS 103279, at *2

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(E.D. Cal. Dec. 12, 2008); 28 U.S.C. § 1915(d).

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As an initial matter, though plaintiff has submitted a completed subpoena form, it appears

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that he has used a state court form and as a result the subpoena does not contain all the

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information required by Rule 45. ECF No. 30 at 5-7. The Clerk of the Court will be directed to

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send plaintiff a blank subpoena form, and the present motion will be denied for failure to comply

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with Rule 45. The motion will also be denied because it fails to establish that the documents

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sought cannot be obtained through discovery requests to defendant Rivera. Although the

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subpoena form states that the documents can only be obtained through the warden of HDSP, there

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is no indication that plaintiff has tried and failed to obtain these documents through discovery

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requests. Id. at 6. In order for the court to consider ordering the United States Marshals to serve

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a subpoena duces tecum on a non-party, plaintiff must submit to the court a completed federal

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subpoena form that describes the items to be produced with reasonable particularity and designate
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a reasonable time, place, and manner for production. Plaintiff must also show that he has not or

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cannot receive the documents he seeks by way of discovery requests to defendant Rivera. Failure

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to make this showing will result in denial of the motion. Plaintiff is further advised that even

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though he is proceeding in forma pauperis, should the court order service of his subpoena, he may

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be required to pay any costs associated with complying with the subpoena in order to avoid

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imposing an undue burden upon a non-party.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The Clerk of the Court is directed to provide plaintiff a signed but otherwise blank

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subpoena duces tecum form with this order. See Fed. R. Civ. P. 45(a)(3).
2. Plaintiff’s motion for issuance of a subpoena and service by the United States Marshals

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(ECF No. 30) is denied without prejudice to a motion that contains the required information and

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is accompanied by a completed subpoena that uses the proper form.

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DATED: November 29, 2017

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