UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
May 10, 2012
D. L. DEAZEVEDO, ET AL.,
The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DENYING MOTION FOR ISSUANCE OF SUBPOENA DUCES TECUM AS PREMATURE (Doc. 19)
Plaintiff Timothy Howard, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on January 20, 2011. On May 3, 2012, Plaintiff filed a motion seeking the issuance of a subpoena duces tecum to non-party Kathleen Allison.
The discovery phase of this litigation is not yet open. Therefore, Plaintiff's motion is premature and it shall be denied. Plaintiff is directed to paragraph 8 of the First Informational Order, filed on January 20, 2011.
Once discovery is open, Plaintiff is informed of the following requirements. Plaintiff may be 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.
As set forth above, Plaintiff's motion for the issuance of a subpoena duces tecum is premature and it is HEREBY DENIED on that ground.
IT IS SO ORDERED.
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