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Timothy Howard v. D. L. Deazevedo

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


May 10, 2012

TIMOTHY HOWARD,
PLAINTIFF,
v.
D. L. DEAZEVEDO, ET AL.,
DEFENDANTS.

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.

20120510

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