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Williams v. Calderon

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


August 1, 2008

DARRYLE WILLIAMS, PLAINTIFF,
v.
CALDERON, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER RE PLAINTIFF'S MOTION TO COMPEL

(Doc. 105)

Plaintiff Darryle Williams ("plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On February 8, 2008, plaintiff filed a "motion for order to compel discovery". (Doc. 105). Defendants filed their opposition on February 13, 2008, and plaintiff filed his reply on March 17, 2008 (Docs. 108, 112).

In his motion, plaintiff requests that the defendants produce materials in the possession of the CDCR and the Attorney General's Office. To the extent that plaintiff's motion can be construed as a motion compelling defendants to produce these documents, plaintiff's motion must be denied. It was not accompanied by a copy of the discovery request at issue, defendants' response to the discovery request, or a certification that plaintiff attempted in good faith to resolve the dispute with defendants prior to seeking the court's intervention. There is nothing demonstrating that plaintiff previously served defendants with a request for production of the documents that is subject to plaintiff's instant "motion for order to compel".

Further, plaintiff states that if the documents exist, they are in the possession of the CDCR and the Attorney General's Office. Plaintiff is entitled to seek documentary evidence from third parties via the issuance of a subpoena duces tecum under Federal Rule of Civil Procedure 45. The court is aware that plaintiff has previously filed a motion for the issuance of a subpoena duces tecum to the Custodian of Records requesting some of the same documents requested here. (Doc. 102). By order issued separately, plaintiff's request for the issuance of a subpoena duces tecum was denied without prejudice to renewal.

Accordingly, plaintiff's motion to compel, filed February 8, 2008 is HEREBY DENIED.

IT IS SO ORDERED.

20080801

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