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Drake v. White

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


June 23, 2009

DEAN DRAKE, PLAINTIFF,
v.
MIKE WHITE, ET AL., DEFENDANT.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the original complaint filed October 14, 2005. Plaintiff alleges that defendants White and Whitehead used excessive force against him.

On April 22, 2009, plaintiff filed a motion to compel production of five document requests (Doc. #68). On May 22, 2009, defendants filed a statement of non-opposition (Doc. #71), stating that counsel had inadvertently forgotten to reply to the five document requests and had since served plaintiff with the appropriate documents, thus the motion is moot.

On June 8, 2009, plaintiff filed a new motion to compel production of a compact disk containing 26 photographs (Doc. #76) that is being held as evidence at High Desert State Prison. Defendants' reply that as guards at the prison they are not the custodians of the records and cannot provide the compact disk.

The court agrees that defendants are not the parties in control of the compact disk and cannot be required to produce it. However, the court will provide plaintiff with a blank subpoena form to acquire the compact disk from the proper party.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's April 22, 2009, motion to compel (Doc. #68) is denied as moot.

2. Plaintiff's June 8, 2009, motion to compel (Doc. #76) is denied.

3. The Clerk of the Court is to provide plaintiff with a blank subpoena form.

20090623

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