The opinion of the court was delivered by: Dennis L. United States Magistrate Judge
ORDER DENYING PLAINTIFF'S MOTIONS TO COMPEL PRODUCTION OF DOCUMENTS WITHOUT PREJUDICE (DOCS.42, 44) ORDER GRANTING PLAINTIFF LEAVE TO FILE MOTION FOR SUBPOENA DUCES TECUM PLAINTIFF'S MOTION DUE WITHIN TWENTY-ONE DAYS
Plaintiff Nick Woodall ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's complaint, filed December 22, 2008, against Defendants T. Gonzalez, T. Lawson, Olive, A. Raygosa, M. Sexton, and Valdez for violation of the Eighth Amendment. On July 1, July 9, and August 12 of 2010, Plaintiff filed motions to compel. Docs. 33, 34, 42, 44. On October 22, 2010, the Court granted in part and denied in part Plaintiff's motions, including Plaintiff's second and third motions to compel production of documents. Doc. 60. The Court ordered Defendants to submit a further response.
On November 15, 2010, Defendants filed further response regarding Plaintiff's request to produce certain documents. Doc. 61. Plaintiff filed his response to Defendants' response on December 2, 2010. Doc. 64.
Defendants object to the production of the following documents: "(a) any investigative documents relating to the search of his cell on September 13, 2007; (b) a log pertaining to Plaintiff's retention in a holding cell on September 13, 2007; (c) facility activity logs from California State Prison--Corcoran (CSP--Corcoran); (d) medical clinic logbook entries from CSP--Corcoran; (e) investigative services logbook entries from September 13, 2007; (f) staff sign in/out sheets from CSP--Corcoran; and (g) in-service training logs pertaining to Defendants training regarding Operational Procedure 241." Defs.' Resp. 3:18-24, Doc. 61. Defendants contend that none of the Defendants as correctional officers have possession of the above documents, and that Defendants' counsel also did not have possession. Id. at 3:25-4:8.
Defendants contend that it is overly burdensome to require Defendants' counsel to obtain documents for Plaintiff as this would result in Defendants' counsel acting as Plaintiff's litigation assistant. Id. at 7:18-8:8. Defendants contend that Plaintiff should move for a subpoena duces tecum to obtain these documents. Id. at 8:11-12.
Plaintiff contends that Defendants should have the burden of production of these documents because Defendants can readily obtain them. Doc. 64.
Having considered the parties' arguments, the Court finds that Defendants' further response is sufficient. Defendants' counsel contends that Defendants as correctional officers do not have ready access to the requested documents, and Defendants' counsel declares that he made an inquiry regarding these documents, but does not have possession, custody, or control of them. Accordingly, the Court will deny Plaintiff's second and third motions to compel production of documents, without prejudice to Plaintiff filing a motion for subpoena duces tecum pursuant to Federal Rules of Civil Procedure 34(c) and 45.*fn1
Plaintiff will be granted additional time in which to file a motion for subpoena duces tecum pertaining to Plaintiff's second and third motions to compel production of documents.
Plaintiff should list what specific documents he seeks produced in the motion for subpoena. The Court will adjudicate Plaintiff's motion and issue a subsequent order for the United States Marshal to serve a subpoena upon the individual in possession of these documents. It is unclear who would have possession of these documents, thus the designated individual in this instance will be the Warden of CSP-Corcoran or his designee. Plaintiff will be granted twenty-one (21) days from the date of service of this order in which to file his motion for subpoena duces tecum. Failure to file a timely motion will result in Plaintiff waiving any further discovery.
Based on the foregoing, it is HEREBY ORDERED that:
1. Plaintiff's second and third motions to compel production of documents, filed at court docket Nos. 42 and 44, are denied without prejudice;
2. Plaintiff is GRANTED leave to file a motion for subpoena duces tecum as to Plaintiff's second and third motions to compel ...