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)

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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

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