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Steven C. Emery v. Michael Harris

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


March 19, 2012

STEVEN C. EMERY,
PLAINTIFF,
v.
MICHAEL HARRIS,
DEFENDANT.

ORDER DENYING PLAINTIFF'S MOTION FOR SUBPOENA OF NON-PARTY, WITHOUT PREJUDICE Doc. 16

On October 18, 2010, Plaintiff, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. Doc. 1. On June 24, 2011, the Court found a cognizable Eighth Amendment excessive force. Doc. 8. On November 28, 2011, Plaintiff filed a motion for subpoena from nonparty California Substance Abuse Treatment Facility / Prison, Corcoran. Doc. 16. This matter is deem submitted pursuant to Local Rule 230(l).

In Plaintiff's motion, he requests video surveillance of the alleged incident; the recorded interview of Plaintiff by Lt. Pineda; all documents related to the alleged incident; and all photographs of the alleged incident. Mot. Subpoena at 2-3, Doc. 16.

Subject to certain requirements, Plaintiff is entitled to the issuance of a subpoena commanding the production of documents or tangible things from a nonparty, 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 or tangible things sought from the nonparty are not equally available to Plaintiff and are not obtainable from Defendant through a request for the production of documents or tangible things. Fed. R. Civ. P. 34. If Defendant objects to Plaintiff's discovery request, a motion to compel is the next required step. If the Court rules that the documents or tangible things are discoverable but Defendants do not have care, custody, and control of them, Plaintiff may then seek a subpoena of a nonparty. Alternatively, if the Court rules that the documents are not discoverable, the inquiry ends.

The Court will not issue a subpoena for a nonparty individual without Plaintiff first following the procedure outlined above.

Accordingly, it is HEREBY ORDERED that Plaintiff's motion for subpoena is DENIED, without prejudice.

IT IS SO ORDERED.

UNITED STATES MAGISTRATE JUDGE

20120319

© 1992-2012 VersusLaw Inc.



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