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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1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 ROBERT FEIGER, Plaintiff, 8 9 10 11 12 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) 13 14 15 Robert Feiger (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights action 16 pursuant to 42 U.S.C. § 1983, which includes state law claims. On March 16, 2017, Plaintiff filed 17 a motion to conduct discovery, request for Court issued subpoenas, and motion for 18 reconsideration of the Court’s denial of Plaintiff’s motion to appoint counsel. (ECF No. 68). 19 20 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). 21 As to Plaintiff’s request for Court issued subpoenas, Plaintiff has failed to comply with 22 the requirements for issuance of the subpoenas. As the Court has informed Plaintiff, “[i]n any 23 request for a subpoena, Plaintiff must: (1) identify with specificity the documents sought and 24 from whom, and (2) make a showing in the request that the records are only obtainable through 25 that third party. The documents requested must also fall within the scope of discovery allowed in 26 this action. See Fed. R. Civ. P. 26(b)(1).” (Id. at p. 4). Plaintiff has failed to identify with 27 28 1 1 specificity the documents he wishes to subpoena1 and failed to make a showing that those records 2 are only obtainable through a third party. 3 As to Plaintiff’s request for the Court to reconsider its denial of Plaintiff’s motion to 4 appoint counsel, this request will be denied because Plaintiff already has a pending motion for 5 appointment of pro bono counsel that is before the Court for consideration (ECF No. 51). Note, 6 however, that “Plaintiff does not have a constitutional right to appointed counsel in this action, 7 Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an attorney 8 to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court 9 for the Southern District of Iowa, 490 U.S. 296, 298 (1989).” (ECF No. 32). 10 Accordingly, based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion 11 to conduct discovery, request for Court issued subpoenas, and motion for reconsideration of the 12 Court’s denial of Plaintiff’s motion to appoint counsel are DENIED. 13 IT IS SO ORDERED. 14 15 Dated: March 20, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 1 28 Plaintiff does identify records that he is seeking through discovery, but he does not identify which of those records he needs subpoenas to get. 2

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