Warren v. Shawnego, et al
Filing
47
ORDER Denying Second 45 Motion for Issuance of Subpoena Duces Tecum as Premature signed by Magistrate Judge Sheila K. Oberto on 06/15/2011. (Flores, E)
1
2
3
4
5
6
UNITED STATES DISTRICT COURT
7
EASTERN DISTRICT OF CALIFORNIA
8
9
CARMON WARREN,
10
CASE NO. 1:03-cv-06336-SKO PC
Plaintiff,
11
v.
12
ORDER DENYING SECOND MOTION FOR
ISSUANCE OF SUBPOENA DUCES TECUM
AS PREMATURE
S. SHAWNEGO,
13
(Doc. 45)
Defendant.
/
14
15
Plaintiff Carmon Warren, a state prisoner proceeding pro se and in forma pauperis, filed this
16
civil rights action pursuant to 42 U.S.C. § 1983 on September 29, 2003. This action is proceeding
17
against Defendant Shawnego on Plaintiff’s due process claim. On June 10, 2011, Plaintiff filed his
18
second motion seeking the issuance of a subpoena duces tecum.
19
Subject to certain requirements set forth herein, Plaintiff is entitled to the issuance of a
20
subpoena commanding the production of documents from a non-party, Fed. R. Civ. P. 45, and to
21
service of the subpoena by the United States Marshal, 28 U.S.C. 1915(d). However, the Court will
22
consider granting such a request only if the documents sought from the non-party are not equally
23
available to Plaintiff and are not obtainable from Defendant through a request for the production of
24
documents. Fed. R. Civ. P. 34. If Plaintiff wishes to make a request for the issuance of a records
25
subpoena, he may file a motion requesting the issuance of a subpoena duces tecum that (1) identifies
26
with specificity the documents sought and from whom, and (2) makes a showing in the motion that
27
the records are only obtainable through that third party.
28
///
1
1
Plaintiff has not demonstrated that he attempted to obtain the documents sought via a request
2
for the production of documents on Defendant.1 Accordingly, Plaintiff’s motion for the issuance of
3
a subpoena duces tecum, filed June 10, 2011, is HEREBY DENIED as premature.
4
5
IT IS SO ORDERED.
6
Dated:
ie14hj
June 15, 2011
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
If Defendant objects to Plaintiff’s document production request, a motion to compel is the next required
step. If the Court rules that the documents are discoverable but Defendant does not have care, custody, and control
of them, Plaintiff may then seek a records subpoena. If the Court rules that the documents are not discoverable, the
inquiry ends.
2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?