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Kane v. Pierce

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


May 14, 2009

SHAUN KANE, PLAINTIFF,
v.
RICHARD PIERCE, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER DENYING PLAINTIFF'S MOTION TO COMPEL (Doc. 92)

Plaintiff Shaun Kane is a federal prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's second amended complaint, filed September 6, 2007, against Defendants Pierce, Mims, Flores, Tilkes, and Yorke stemming from the unavailability of outdoor exercise during the times Plaintiff was housed at the Fresno County Jail, in violation of Plaintiff's constitutional rights

On May 11, 2009, Plaintiff filed a motion seeking to compel the Fresno County Jail to release former Sheriff Richard Pierce's address so that the United States Marshal may serve him with process. Plaintiff may not seek a court order compelling discovery unless he first properly serves a discovery request on a parties or parties, and is dissatisfied with the response. Fed. R. Civ. P. 37. In the alternative, Plaintiff may seek documents from a non-party through the issuance of a subpoena duces tecum. Fed. R. Civ. P. 45. However, the Court will consider granting a request for the issuance of a subpoena duces tecrum only if the documents sought from the non-party are discoverable, are not equally available to Plaintiff, and are not obtainable from Defendants through a request for production of documents. Fed. R. Civ. P. 45(c); Fed. R. Civ. P. 34. Here, Plaintiff has made no such showing, and it appears that Plaintiff's motion is his first attempt at obtaining the information he seeks.

Accordingly, Plaintiff's motion to compel is premature and is HEREBY DENIED.

IT IS SO ORDERED.

20090514

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