UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
December 19, 2008
JOHN ROBERT SILVIS, PLAINTIFF,
CALIFORNIA DEPARTMENT OF CORRECTIONS, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER DENYING MOTION FOR ISSUANCE OF SUBPOENA DUCES TECUM, WITHOUT PREJUDICE, AS PREMATURE (Doc. 48)
Plaintiff John Robert Silvis ("Plaintiff") is a civil detainee proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On December 17, 2008, Plaintiff filed a motion seeking the issuance of a subpoena duces tecum commanding the California Department of Corrections and Rehabilitation ("CDCR") to produce his central file and medical file.
Subject to certain requirements, Plaintiff is entitled to the issuance of a subpoena commanding the production of documents from non-parties, and to service of the subpoena by the United States Marshal. Fed. R. Civ. P. 45; 28 U.S.C. 1915(d). However, the Court will consider granting such a request only if the documents sought from the non-party are not equally available to Plaintiff and are not obtainable from Defendants through a request for production of documents. Fed. R. Civ. P. 34. If Plaintiff wishes to make a request for the issuance of a records subpoena, he may file a motion requesting the issuance of a subpoena duces tecum that (1) identifies with specificity the documents sought and from whom, and (2) makes a showing in the motion that the records are only obtainable through that third party.
Plaintiff is no longer in CDCR's custody and states that he has been unable to obtain copies of his file from the custodian of records, despite offering to pay photocopying costs. However, Plaintiff has made no showing that he has attempted to secure the documents through a discovery request served on Defendants.*fn1
Accordingly, Plaintiff's motion is HEREBY DENIED, without prejudice, as premature.
IT IS SO ORDERED.