UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
January 24, 2012
JAMES E. TILTON, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER DENYING REQUEST FOR SUBPOENAS (Doc. 63.)
Norman Ivory ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action now proceeds on Plaintiff's original Complaint filed on July 20, 2009, against defendant Correctional Officer S. Meraz for use of excessive force in violation of the Eighth Amendment, and defendant Captain M. V. Sexton for retaliation in violation of the First Amendment.*fn1 (Doc. 1.) Pursuant to the Court's order of May 31, 2011, this action is in the discovery phase. On August 9, 2011, Plaintiff filed a request seeking the issuance of three subpoenas commanding the following non-parties , Chief Medical Officer, Appeals Coordinator, and Head of Records, to produce documents and electronically-stored information relevant to Plaintiff during his period of incarceration at Avenal State Prison from July 2007 through July 2009. (Doc. 63.) For the reasons set forth below, Plaintiff's request is denied.
Subject to certain requirements set forth herein, 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.
For the reasons set forth above, Plaintiff's request for the issuance of subpoenas is HEREBY DENIED.
IT IS SO ORDERED.