UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
April 20, 2013
LONG WAY, PLAINTIFF,
20 UNKNOWN EMPLOYEES,
The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER GRANTING PLAINTIFF'S MOTION FOR SUBPOENA (Document 16)
Plaintiff Long Way ("Plaintiff"), a federal prisoner proceeding pro se, filed this civil action on March 9, 2012, pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which provides a remedy for violation of civil rights by federal actors. Plaintiff paid the filing fee and is therefore not proceeding in forma pauperis. He filed a First Amended Complaint on March 22, 2013, and states a cognizable claim under the First Amendment. However, Plaintiff names 20 Unknown Employees of Federal Bureau of Prisons USP-Atwater, as Defendants and has indicated that he is unable to discover their identities.
On April 12, 2013, Plaintiff submitted a request for the issuance of a subpoena directed to the Warden at USP-Atwater.
Subject to certain 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. To obtain such relief, Plaintiff must file a motion requesting the issuance of a subpoena duces tecum that identifies with specificity the documents sought and from whom.
Here, Plaintiff has repeatedly indicated to the Court that he is unable to determine the name of the individuals that comprised the shakedown crew on April 7, 2010, in Unit 5A. He seeks this subpoena, directed at the Warden of USP-Atwater, to discover their identities.*fn1
The Court finds that a subpoena in this instance is warranted and therefore GRANTS Plaintiff's motion. However, because Plaintiff is not proceeding pro se, he is not entitled to service by the United States Marshal. Plaintiff will be responsible for service of the subpoena and he is therefore directed to Federal Rule of Civil Procedure 45(b), which requires service by a person who is at least 18 years of age and not a party to the action. Serving a subpoena requires delivering a copy to the named person.
Accordingly, it is HEREBY ORDERED that:
1. The Clerk of Court shall forward the following documents to Plaintiff:
A. One (1) completed and issued subpoena duces tecum to be served on:
U.S. PENITENTIARY P.O. BOX 019001 ATWATER, CA 95301
The Warden of USP Atwater is directed to produce the following within thirty (30) days from the date of service of the subpoena:
●The names of the USP-Atwater officers who conducted a shakedown at USP-Atwater, Unit 5A, on April 7, 2010.
B. One (1) copy of this order to accompany the subpoena.
2. Within thirty (30) days from the date of this order, Plaintiff is directed to serve the subpoena, along with a copy of this order, in accordance with the provisions of Rule 45 of the Federal Rules of Civil Procedure.
3. Within ten (10) days after personal service is effected, Plaintiff shall file the return of service with the Court.
IT IS SO ORDERED.