UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
June 9, 2011
WILLIAM B. PRUITT,
CLARK, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DENYING PLAINTIFF'S MOTION TO COMPEL (Doc. 37)
Plaintiff William B. Pruitt, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on November 26, 2007. This action is proceeding against Defendants Swinford, Bonilla, Lara, Curtiss, and Wan on Plaintiff's Fourth Amendment strip search claim. *fn1 On June 7, 2011, Plaintiff filed a motion to compel responses to his request for the production of documents, set one, served on Defendant Wan.
Plaintiff seeks to compel photographs of the work change area in Facility B at the California Substance Abuse Treatment Facility, the counters of the work change area, and the privacy partition which shields nude prisoners from female officers. In relevant part, Defendant Wan objected on the ground that the requests call upon him to create the photographs sought.
"Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense. . . . Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1). For document production requests, responding parties must produce documents which are in their "possession, custody or control." Fed. R. Civ. P. 34(a)(1).
Plaintiff is entitled to the production of discoverable evidence, but in this instance, the evidence he seeks does not currently exist. Plaintiff may not compel Defendants to create the photographs he seeks and for that reason, his motion to compel is HEREBY DENIED. *fn2 *fn3
IT IS SO ORDERED.