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Joseph R. Pulliam v. M. Lozano

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


March 9, 2011

JOSEPH R. PULLIAM,
PLAINTIFF,
v.
M. LOZANO, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER DENYING PLAINTIFF'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS WITHOUT PREJUDICE

(ECF No. 40)

ORDER GRANTING PLAINTIFF LEAVE TO FILE MOTION FOR SUBPOENA DUCES TECUM PLAINTIFF'S MOTION DUE WITHIN TWENTY-ONE DAYS

Plaintiff Joseph R. Pulliam ("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 First Amended Complaint, filed December February 2, 2009, against Defendants Lozano and Mason for violation of the Eighth Amendment. On December 20, 2010, Plaintiff filed a motion to compel. (ECF No. 40.) On January 31, 2010, the Court granted Plaintiff's motion and ordered Defendants to submit a further response. (ECF No. 46.)

On February 9, 2011, Defendants filed a further response regarding Plaintiff's request to produce certain documents. (ECF No. 47.) Plaintiff filed his response to Defendants' response on March 2, 2011. (ECF No. 48.)

I. Defendants' Response

Defendants object to producing any additional documents on the grounds that they do not have possession, custody, or control of such documents. Defendants contend that it is overly burdensome to require Defendants' counsel to obtain documents for Plaintiff as this would require Defendants' counsel to act as Plaintiff's litigation assistant. Defendants contend that Plaintiff should move for a subpoena duces tecum to obtain these documents.

Having considered the parties' arguments, the Court finds that Defendants' further response is sufficient. Defendants' counsel contends that Defendant correctional officers do not have ready access to the requested documents, and that he, counsel for Defendants, has made inquiry regarding the documents, but does not have possession, custody, or control of them. Accordingly, the Court will reconsider its prior ruling and will deny Plaintiff's motion to compel without prejudice to Plaintiff filing a motion for subpoena duces tecum pursuant to Federal Rules of Civil Procedure 34(c) and 45.

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 further discovery. In his motion, Plaintiff should list the specific documents he seeks and explain why he believes that they are relevant to this action. The Court will not permit Plaintiff to use this litigation as a fishing expedition for other pending or contemplated legal action. All requests must be reasonably calculated to lead to evidence that would be admissible and relevant to this action.

The Court will adjudicate Plaintiff's motion and, if warranted, issue a subsequent order for the United States Marshal to serve a subpoena upon the individual in possession of these documents. Because it appears that most of the documents sought will be in the custody and control of the California Department of Corrections at Kern Valley State Prison, the designated individual in this instance will be the Warden of Kern Valley State Prison or his designee.

II. Conclusion And Order

Based on the foregoing, it is HEREBY ORDERED that:

1. Plaintiff's motion to compel production of documents (ECF No. 40) is denied without prejudice;

2. Plaintiff is GRANTED leave to file a motion for subpoena duces tecum as to Plaintiff's motion to compel production of documents, as stated herein;

3. Plaintiff's motion is to be filed within twenty-one (21) days from the date of service of this order; and

4. Failure to file a timely motion for subpoena duces tecum will be construed as a waiver of further discovery in this action.

IT IS SO ORDERED.

20110309

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