United States District Court, E.D. California
ORDER DENYING PLAINTIFF’S MOTION FOR A SUBPOENA
DUCES TECUM (ECF Nos. 58 & 60) FINDINGS AND
RECOMMENDATION DENYING PLAINTIFF’S MOTION FOR A
PRELIMINARY INJUNCTION (ECF No. 59) FOURTEEN DAY OBJECTION
MICHAEL J. SENG, UNITED STATES MAGISTRATE JUDGE
Nathan Sessing (“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 case proceeds
on Plaintiff’s June 19, 2015 fourth amended complaint
against Defendants Sherman, Stainer, and Braggs for violating
the Equal Protection Clause of the Fourteenth Amendment by
failing to provide Plaintiff with appropriate religious
accommodations. (ECF No. 34.)
a prisoner housed at the California Substance Abuse and
Treatment Facility in Corcoran, California
(“CSATF”), is a practitioner of Asatru/Odinism,
an “earth-based, ” polytheistic religion
originating in Northern Europe several thousand years ago.
to Plaintiff, outdoor worship utilizing a fire pit, an altar,
and a circle of stones is an essential part of
Asatru/Odinism. Fire plays an important role in the
blot, which is a monthly Odinist ceremony in which
objects are sacrificed to the deities.
are designated outdoor pagan worship areas on each CSATF
yard. They are zoned off with orange cones during times of
worship. These pagan grounds are available for use by all
religious faith groups, including Odinists.
Native Americans at CSATF have separate ceremonial worship
grounds that include a fire pit. Plaintiff alleges that the
Native Americans are the only religious group that has been
granted these accommodations. He does not have access to the
Native American worship area. In any event, Plaintiff objects
to sharing an outdoor worship space with other faiths,
specifically Native Americans, because “that would
transgress against their deities and his deities.”
to a memorandum dated January 20, 2015, an outdoor worship
enclosure was constructed at CSATF for all interested
inmates. Plaintiff states that no Odinists were consulted in
the construction of this enclosure. Plaintiff refuses to use
the enclosure because “it prevents the spirits of the
land from communing with him” and he is not permitted
to have a fire pit inside of it. Plaintiff also states he
will be harmed if he attempts to practice his religion in a
space used by practitioners of different faiths.
12, 2016,  Plaintiff states he and his fellow
Odinists were ordered by prison staff to either use the
enclosure provided or terminate their religious services.
Plaintiff alleges he has suffered and continues to suffer
irreparable harm from being unable to worship as he chooses.
MOTION FOR SUBPOENAS DUCES TECUM
20, 2016, Plaintiff filed a subpoena duces tecum with the
Court. It purports to direct CDCR Secretary Scott Kernan to
produce records of policies at other CDCR institutions
allowing practitioners of Odinism/Asatru access to a fire pit
in an outdoor area solely for their use. (ECF No. 58). On
July 5, 2016, Plaintiff filed a note addressed to the Clerk
of Court asking the proper procedure for serving subpoenas.
(ECF No. 60.)
Court will construe these two filings (ECF Nos. 58 and 60) as
a request to the Court to issue a subpoena directing CDCR
Secretary Scott Kernan to turn over certain documents.
parties may be entitled to the issuance of a subpoena
commanding the production of documents from a nonparty,
subject to certain requirements. Fed.R.Civ.P. 26(b), 34(c),
45. The Court will consider granting such a request only if
the documents sought from the nonparty are not equally
available to Plaintiff and are not obtainable from Defendant
through a request for the production. See
Fed.R.Civ.P. 34. If Defendant objects to Plaintiff's
discovery request, a motion to compel is the next step. If
the Court rules that the documents are discoverable but
Defendant does not have care, custody, ...