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Gary andre Lacy v. H. Tyson

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


March 26, 2012

GARY ANDRE LACY, PLAINTIFF,
v.
H. TYSON, ET AL.,
DEFENDANTS.

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

ORDER DENYING REQUEST FOR SUBPOENAS, WITHOUT PREJUDICE TO RENEWAL WITHIN THIRTY DAYS (Doc. 89.) THIRTY DAY DEADLINE

Gary Andre Lacy ("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 the Second Amended Complaint, filed on April 28, 2009, against defendants Correctional Officers R. Reyna, T. Reyna, and N. Correa; Correctional Sergeants J. Peacock, M. Bremnar, and M. Brookwalter; Captain H. Tyson; Medical Technician Assistant (MTA) Aspeitia; and Doctor I. Patel; on Plaintiff's claims for excessive force, retaliation, and deliberate indifference to serious medical needs. *fn1

On October 27, 2011, Plaintiff filed a request seeking the issuance of three blank subpoenas commanding non-parties to produce documents. (Doc. 89.) For the reasons set forth below, Plaintiff's present request is denied, without prejudice to renewal of the request within thirty days.

Subject to certain requirements set forth herein, Plaintiff is entitled to the issuance of subpoenas commanding the production of documents from non-parties, and to service of the subpoenas 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-parties are not equally available to Plaintiff and are not obtainable from Defendants through a request for production of documents. Fed. R. Civ. P. 34. Plaintiff has not indicated which documents he seeks or demonstrated that he made a request for production of those documents to Defendants.

If Plaintiff chooses, he may file another request for the issuance of subpoenas within thirty days 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. Also, documents requested must fall within the scope of discovery allowed in this action. *fn2

The time for conducting discovery in this action, including filing motions to compel, expired on March 15, 2012. Therefore, if Plaintiff chooses to file another request for subpoenas pursuant to this order, he should also file a motion to reopen discovery for this limited purpose. Plaintiff should note that although he has been granted leave to file another request for subpoenas, he does not have leave to make other discovery requests, or file a motion to compel, at this juncture.

For the reasons set forth above, IT IS HEREBY ORDERED that Plaintiff's request for the issuance of subpoenas, filed on October 27, 2011, is DENIED, without prejudice to renewal of the request within thirty days from the date of service of this order, as instructed by this order.

IT IS SO ORDERED.


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