Heilman v. Cherniss et al

Filing 39

ORDER signed by Magistrate Judge Edmund F. Brennan on 5/22/2012 DENYING plaintiff's 31 request for appoint Counsel of counsel, plaintiff's 33 request to modify the scheduling order, and plaintiff's 36 request for the US Marshal to serve a non-party subpoena. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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THOMAS JOHN HEILMAN,
Plaintiff,

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vs.

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No. CIV S-11-0042 JAM EFB P

C. CHERNIS, et al.,
Defendants.

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ORDER
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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. This order addresses plaintiff’s requests for (1) appointment of counsel, (2)

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modification of the discovery and scheduling order, and (3) service of a subpoena duces tecum.

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I.

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Appointment of Counsel
Plaintiff requests that the court appoint counsel. Dckt. No. 31. District courts lack

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authority to require counsel to represent indigent prisoners in section 1983 cases. Mallard v.

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United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court

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may request an attorney to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1);

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Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332,

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1335-36 (9th Cir. 1990). When determining whether “exceptional circumstances” exist, the

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court must consider the likelihood of success on the merits as well as the ability of the plaintiff to
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articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v.

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Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Having considered those factors, the court finds there

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are no exceptional circumstances in this case.

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II.

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Modification of the Discovery and Scheduling Order
On March 22, 2012, the court issued a discovery and scheduling order. Dckt. No. 29. It

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set July 6, 2012 as the close of discovery and required that all requests for discovery be served

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by May 7, 2012. Id. On April 9, 2012, plaintiff requested a 30-day extension of time to serve

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discovery requests because some of his legal materials had been confiscated. Dckt. No. 33.

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Defendants opposed the request, and plaintiff filed a reply. Dckt. Nos. 34, 35. A scheduling

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order may be modified upon a showing of good cause. Fed. R. Civ. P. 16(b). Good cause exists

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when the moving party demonstrates he cannot meet the deadline despite exercising due

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diligence. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). Plaintiff

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does not explain what efforts he has made, if any, toward drafting his requests for discovery or

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how the lack of access to some of his legal property has interfered with his ability to draft his

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discovery requests. Plaintiff’s request to modify the scheduling order is denied.

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III.

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Subpoena Duces Tecum
On April 23, 2012, plaintiff requested that the U.S. Marshal serve a subpoena duces

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tecum to obtain documents from the California Department of Corrections and Rehabilitation.

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Dckt. No. 36. Plaintiff’s request is accompanied by a list of 36 categories of requested

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documents. Defendants oppose the request, contending that plaintiff improperly seeks to

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circumvent the discovery process by seeking irrelevant and possibly privileged personnel records

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of defendants through their employer. Dckt. No. 38. Defendants also note that plaintiff has

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previously been instructed about the limitations of subpoenas under Federal Rule of Civil

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Procedure 45. See Heilman v. Lyons, Case No. 2:09-cv-2721 KJN, December 10, 2010 Order,

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Dckt. No. 19.

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Plaintiff may seek documentary evidence from third parties via the issuance of a

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subpoena duces tecum. Fed. R. Civ. P. 45(a)(1). However, if plaintiff seeks to have a subpoena

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served by the United States Marshal, he must provide the court with a subpoena duces tecum

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from this court. 28 U.S.C. §1915(d). Here, plaintiff has not provided a completed subpoena for

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service, but rather, only a list of requested documents. Moreover, the court issuing a subpoena

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must ensure that the party serving it takes “reasonable steps to avoid imposing undue burden or

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expense on a person subject to the subpoena.” Fed. R. Civ. P. (c)(1). Mindful of this duty, the

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court notes that plaintiff’s request does not show that he is seeking only relevant documents

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through a subpoena, or that the documents he seeks are unavailable to him and not obtainable

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from defendants through discovery. See Lopez v. Schwarzenegger, Case No. S-09-cv-1760 MCE

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GGH, 2012 U.S. Dist. LEXIS 2957, at *21-22 (E.D. Cal. Jan. 9, 2012) (discussing the limitations

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on the court’s authorization of a subpoena duces tecum requested by an in forma pauperis

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plaintiff). Plaintiff’s request that the U.S. Marshal serve a subpoena duces tecum must therefore

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be denied.

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IV.

Order

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for appointment of counsel, Dckt. No. 31, is denied.

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2. Plaintiff’s request to modify the scheduling order, Dckt. No. 33, is denied.

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3. Plaintiff’s request for the U.S. Marshal to serve a non-party subpoena, Dckt. No. 36, is

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denied.

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DATED: May 22, 2012.

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