UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
October 1, 2010
FLOYD STEVESON MOODY, PLAINTIFF,
PAULETTE FINANDER, CHIEF MEDICAL OFFICER, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Bernard G. Skomal United States Magistrate Judge
ORDER: (1) DENYING PLAINTIFF'S MOTION TO SERVE A SUBPOENA & (2) DIRECTING DEFENDANTS TO RESPOND
On September 7, 2010, Plaintiff Floyd Steveson Moody, an incarcerated individual proceeding pro se in this action, filed a motion for request to serve a subpoena pursuant to Fed. R. Civ. Pro. 45. (Doc. No. 72.) Plaintiff seeks to serve the subpoena on a non-party, the custodian of medical records at the Pleasant Valley State Prison, to obtain his medical records. (Id.) Plaintiff has attached to his motion a subpoena form issued from the Southern District of California.*fn1
After a review of Plaintiff's motion, it appears that Plaintiff seeks the issuance of a subpoena out of the wrong district. Pursuant to Federal Rule of Civil Procedure 45(a)(2)(C), "a subpoena must issue . . . for production or inspection, if separate from a subpoena commanding a person's attendance, from the court for the district where the production or inspection is to be made." Plaintiff identifies the place of inspection on the subpoena form as Pleasant Valley State Prison. (Doc. No. 72 at 7.) Pleasant Valley State Prison is located in Coalinga, California. (Id. at 2.) Coalinga is located in Fresno County, California, which is part of the Eastern District of California. 28 U.S.C. §84(b). Therefore, if Plaintiff wishes to serve a subpoena upon the custodian of medical records at Pleasant Valley State Prison, he must request a subpoena from the Eastern District of California. Accordingly, the Court denies Plaintiff's request for a subpoena pursuant to Rule 45 as it appears this Court is not the proper issuing court.
Although Plaintiff's motion seeks a subpoena to obtain the medical records from a non-party, Plaintiff indicates that he has requested these documents from Defendants, who have objected to Plaintiff's request by stating that Plaintiff can obtain these records "through the institution."*fn2 (Doc. No. 72 at 3.) Plaintiff is seeking records that are likely to be in the possession, custody and/or control of Defendants, as he seeks his Pleasant Valley State Prison unit health record*fn3 (Volumes I and II) in this §1983 action based upon inadequate medical care. As the Eastern District of California has stated, "it is highly unlikely that Defendants do not have possession, custody, or control of these documents, assuming that the documents exist somewhere within the California Department of Corrections and Rehabilitation."*fn4 Carter v. Dawson, 2010 WL 1796798 *2 (E.D. Cal. May 4, 2010). "A party may be ordered to produce a document in the possession of a non-party entity if that party has a legal right to obtain the document or has control over the entity who is in possession of the document." Soto v. City of Concord, 162 F.R.D. 603, 619 (N.D.Cal.1995) (citing Buckley v. Vidal, 50 F.R.D. 271, 274 (S.D.N.Y.1970)).
Although the California Department of Corrections and Rehabilitation ("CDCR") is not a party to this action, Defendants Paulette Finander and K. Ball, who are employed by CDCR as Chief Medical Officers, "can generally obtain documents such as the ones at issue here by simply requesting them from CDCR." Carter, 2010 WL 1796798 *2; see also Johnson v. Vord, 2008 WL 3892106 *2 (E.D. Cal. Aug. 21, 2008) (requesting defense counsel contact the prison litigation office to facilitate a review of Plaintiff's medical file for him). As such, Defendants Finander and Ball, as employees of CDCR, are to respond to Plaintiff's request for a subpoena on or before October 15, 2010. Defendants shall set forth facts that persuasively demonstrate why they do not have access to these documents. If Defendants do have access, Defendants shall address any reasons why they object to supplying Plaintiff with the documents in response to his request or why they object to facilitating a review of the records for Plaintiff, as resolving this matter informally would avoid unnecessary expenditure of resources.
IT IS SO ORDERED.