(PC) Ackerson v. Elliott

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 ELTON ACKERSON, No. 2:21-cv-2205 WBS KJN P 12 Plaintiff, 13 v. ORDER 14 ELLIOTT, et al., 15 Defendants. [16] 17 Plaintiff is a state prisoner, proceeding pro se. On September 12, 2022, plaintiff filed a 18 request to subpoena certain documents. Plaintiff seeks various documents and video recordings 19 from nonparty Sacramento County Sheriff Scott Jones. As discussed below, plaintiff’s request is 20 denied. 21 Applicable Law 22 Pursuant to Federal Rule of Civil Procedure 45(a)(2), a subpoena duces tecum may direct 23 a non-party to an action to produce documents or other tangible objects for inspection. A 24 subpoena must be personally served or it is null and void. Fed. R. Civ. P. 45(c); Gillam v. A. 25 Shyman, Inc., 22 F.R.D. 475 (D. Alaska 1958). Because plaintiff is proceeding in forma 26 pauperis, he is entitled to obtain personal service of an authorized subpoena duces tecum by the 27 United States Marshal. 28 U.S.C. § 1915 (d). However, this court must consider the following 28 //// 1 limitations before directing the United States Marshal to personally serve a prisoner’s proposed 2 subpoena duces tecum. 3 A subpoena duces tecum is subject to the relevance standards set forth in Federal Rule of 4 Civil Procedure 26(b)(1) (“[p]arties may obtain discovery regarding any nonprivileged matter that 5 is relevant to any party’s claim or defense”), and the considerations of burden and expense set 6 forth in Federal Rules of Civil Procedure 26(b)(2) and 45(c)(1). The “Federal Rules of Civil 7 Procedure were not intended to burden a non-party with a duty to suffer excessive or unusual 8 expenses in order to comply with a subpoena duces tecum.” Badman v. Stark, 139 F.R.D. 601 , 9 605 (M.D. Pa. 1991) (requiring indigent plaintiff to demonstrate that he had “made provision for 10 the costs of such discovery”) (citing Cantaline v. Raymark Industries, Inc., 103 F.R.D. 447 , 450 11 (S.D. Fla.1984)); see also United States v. Columbia Broadcasting System, Inc., 666 F.2d 364 12 (9th Cir.1982) (court may award costs of compliance with subpoena to non-party). Non-parties 13 are “entitled to have the benefit of this Court’s vigilance” in considering these factors. Badman, [14] 139 F.R.D. at 605 . In addition, a motion authorizing service of a subpoena duces tecum must be 15 supported by: (1) clear identification of the documents sought and from whom, and (2) a showing 16 that the records are obtainable only through the identified third party. See, e.g., Davis v. Ramen, [17] 2010 WL 1948560 , *1 (E.D. Cal. 2010); Williams v. Adams, 2010 WL 148703 , *1 (E.D. Cal. 18 2010). 19 Discussion 20 This action proceeds against defendants Deputy Elliott, Deputy Hill, and Sgt. Cuneo. 21 Plaintiff seeks copies of complaints or other civil actions contained in the employment records of 22 the named defendants, video surveillance footage, jail policies and electronic communications. 23 (ECF No. 25 at 2.) However, plaintiff fails to demonstrate that such items cannot be obtained 24 through discovery propounded to the named defendants. For example, plaintiff could submit a 25 request for production of documents and other tangible items to counsel for defendants. 26 Accordingly, plaintiff’s request for a subpoena duces tecum is denied. 27 //// 28 //// ] Accordingly, IT IS HEREBY ORDERED that plaintiff's request (ECF No. 25) is denied 2 || without prejudice. 3 || Dated: September 26, 2022 ' Foci) Aharon 5 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE [8] facke2205.sdt [10] 1]