Harpool v. Beyer et al

Filing 50

ORDER signed by Magistrate Judge Gregory G. Hollows on 9/15/11 ORDERING that 45 Motion to Appoint Counsel is DENIED; In order for the court to order plaintiff be provided with a form for a subpoenaduces tecum and/or a form for a subpoena ad testifi candum (Docket No. 38 & No. 46 ) to be served by the U.S. Marshal on his behalf, plaintiff must provide information to the court within fourteen days as to how the information/documentation sought complies with Fed. R. Civ. P. 26(b)(1). (Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GARY HARPOOL,
Plaintiff,

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vs.

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No. CIV S-10-1253 MCE GGH P

M. BEYER, et al.,

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Defendants.

ORDER
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Plaintiff, a state prisoner proceeding pro se, seeks relief under 42 U.S.C. § 1983.

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Plaintiff seeks a subpoena duces tecum form and a subpoena ad testificandum form signed by the

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court clerk but otherwise left blank, pursuant to Fed. R. Civ. P. 45. While plaintiff is entitled to

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seek documentary evidence from third parties under Rule 45, a request for this court to issue a

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subpoena duces tecum brought within the context of discovery requires that the production

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sought falls properly within the scope of discovery under Fed. R. Civ. 26(b)(1). Gibson v. Beer,

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2008 WL 2344340 *1(E.D. Cal. Jun 5, 2008); Peyton v. Burdick, 2008 WL 880573 *1 (E.D. Cal.

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Mar 31, 2008). Plaintiff, who proceeds in forma pauperis, has failed to set forth what he seeks

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by way of any subpoena. As any subpoena would have to be served by the United States

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Marshal, plaintiff must provide the information he seeks before this court will order a subpoena

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issued to him and will order the U.S. Marshal to serve any subpoena on plaintiff’s behalf.
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Moreover, “any fees required for service of subpoenas for documents on nonparties pursuant to

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Rule 45 are not waived based on plaintiff's in forma pauperis status.” Miller v. Rufion, 2010 WL

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1883462 *1 (E.D. Cal. 2010), citing Tedder v. Odel, 890 F.2d 210, 211-12 (9th Cir.1989).

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Plaintiff will be responsible for paying all costs associated with the subpoenas and any

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deposition.

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Plaintiff has also requested the appointment of counsel. The United States

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Supreme Court has ruled that district courts lack authority to require counsel to represent

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indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298

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(1989). In certain exceptional circumstances, the court may request the voluntary assistance of

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counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.

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1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). In the present case, the

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court does not find the required exceptional circumstances and plaintiff has exhibited sufficient

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knowledge to address the issues his case raises. Plaintiff’s request for the appointment of

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counsel will therefore be denied.

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Accordingly, IT IS HEREBY ORDERED that:

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1. In order for the court to order plaintiff be provided with a form for a subpoena

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duces tecum and/or a form for a subpoena ad testificandum (Docket No. 38 & No. 46) to be

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served by the U.S. Marshal on his behalf, plaintiff must provide information to the court within

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fourteen days as to how the information/documentation sought complies with Fed. R. Civ. P.

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26(b)(1).
2. Plaintiff’s request for the appointment of counsel (Docket No. 45) is denied.

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DATED: September 15, 2011
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH:009/md

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harp1253.31+

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