UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
June 15, 2011
The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DENYING SECOND MOTION FOR ISSUANCE OF SUBPOENA DUCES TECUM AS PREMATURE
Plaintiff Carmon Warren, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on September 29, 2003. This action is proceeding against Defendant Shawnego on Plaintiff's due process claim. On June 10, 2011, Plaintiff filed his second motion seeking the issuance of a subpoena duces tecum.
Subject to certain requirements set forth herein, Plaintiff is entitled to the issuance of a subpoena commanding the production of documents from a non-party, Fed. R. Civ. P. 45, and to service of the subpoena by the United States Marshal, 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 Defendant through a request for the 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 has not demonstrated that he attempted to obtain the documents sought via a request for the production of documents on Defendant. *fn1 Accordingly, Plaintiff's motion for the issuance of a subpoena duces tecum, filed June 10, 2011, is HEREBY DENIED as premature.
IT IS SO ORDERED.