Feiger v. Smith et al

Filing 70

ORDER denying Plaintiff's 68 Motion to conduct discovery; Request for court issued subpoenas and Motion for reconsideration of denial of Motion to appoint counsel signed by Magistrate Judge Erica P. Grosjean on 3/20/2017. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT FEIGER,
Plaintiff,

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v.
MARLENE SMITH, et al.,
Defendants.

Case No. 1:14-cv-01920-DAD-EPG (PC)
ORDER DENYING PLAINTIFF’S MOTION TO
CONDUCT DISCOVERY, REQUEST FOR
COURT ISSUED SUBPOENAS, AND MOTION
FOR RECONSIDERATION OF DENIAL OF
PLAINTIFF’S MOTION TO APPOINT
COUNSEL
(ECF NO. 68)

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Robert Feiger (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights action

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pursuant to 42 U.S.C. § 1983, which includes state law claims. On March 16, 2017, Plaintiff filed

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a motion to conduct discovery, request for Court issued subpoenas, and motion for

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reconsideration of the Court’s denial of Plaintiff’s motion to appoint counsel. (ECF No. 68).

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All of Plaintiff’s requests will be denied. As to Plaintiff’s request to conduct discovery,
the parties have already been granted leave to conduct discovery. (ECF No. 65, p. 2).

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As to Plaintiff’s request for Court issued subpoenas, Plaintiff has failed to comply with

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the requirements for issuance of the subpoenas. As the Court has informed Plaintiff, “[i]n any

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request for a subpoena, Plaintiff must: (1) identify with specificity the documents sought and

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from whom, and (2) make a showing in the request that the records are only obtainable through

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that third party. The documents requested must also fall within the scope of discovery allowed in

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this action. See Fed. R. Civ. P. 26(b)(1).” (Id. at p. 4). Plaintiff has failed to identify with

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specificity the documents he wishes to subpoena1 and failed to make a showing that those records

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are only obtainable through a third party.

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As to Plaintiff’s request for the Court to reconsider its denial of Plaintiff’s motion to

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appoint counsel, this request will be denied because Plaintiff already has a pending motion for

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appointment of pro bono counsel that is before the Court for consideration (ECF No. 51). Note,

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however, that “Plaintiff does not have a constitutional right to appointed counsel in this action,

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Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an attorney

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to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court

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for the Southern District of Iowa, 490 U.S. 296, 298 (1989).” (ECF No. 32).

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Accordingly, based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion

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to conduct discovery, request for Court issued subpoenas, and motion for reconsideration of the

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Court’s denial of Plaintiff’s motion to appoint counsel are DENIED.

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IT IS SO ORDERED.
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Dated:

March 20, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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Plaintiff does identify records that he is seeking through discovery, but he does not identify
which of those records he needs subpoenas to get.

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