Benyamini v. Hommer et al

Filing 76

ORDER signed by Magistrate Judge Allison Claire on 3/17/15 ORDERING that Plaintiff shall have ten days from the date this order is filed to file a declaration in support of his request for an extension of time to submit discovery responses 73 . Plai ntiff shall have ten days from the date this order is filed to file a declaration in support of his request for permission to use the courts electronic filing system 73 . Plaintiff's motion for a subpoena duces tecum 73 is denied without prejudice to a motion in proper form. The Clerk of the Court is directed to provide plaintiff a signed but otherwise blank subpoena duces tecum form with this order. Plaintiffs motion for appointment of counsel 73 is denied.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT BENYAMINI,

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No. 2:11-cv-2317 TLN AC P

Plaintiff,

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v.

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O’BRIAN, et al.,

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ORDER

Defendants.

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Plaintiff has filed a motion in which he seeks (1) an extension of time to answer the

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defendants’ first set of discovery, (2) leave to electronically file, (3) service of a subpoena on

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non-party Folsom State Prison, and (4) appointment of counsel. ECF No. 73 at 4-5. Defendants

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have not responded.

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I.

Motion for Extension of Time
On December 29, 2014, plaintiff filed a motion for extension of time to answer discovery.

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ECF No. 71. The court dismissed plaintiff’s motion based on the ground that he had not

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identified the discovery requests he sought the extension of time to answer. ECF No. 72.

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Plaintiff has now filed another motion seeking an extension of time to respond to discovery. ECF

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No. 73.

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Plaintiff’s new motion for extension is nearly identical to his previous motion. He adds

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that he is seeking an extension to respond to the first set of discovery requests from defendants

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Hammer, O’Brian, and Reynolds. Id. at 1. However, plaintiff has not identified when his

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responses were due, and it appears, but is not clear, that he has already received one extension to

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respond to these requests (ECF No. 67). It is also unclear whether the reason plaintiff requires

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additional time is because he is still attempting to obtain documents from Folsom State Prison.

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ECF No. 73 at 2-3, 5.

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Rather than dismissing plaintiff’s motion again, the court will direct plaintiff to file a

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declaration addressing when the responses were originally due, whether these are the same

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requests he previously received additional time to respond to, and why he needs the extension.

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Plaintiff is advised that the fact that defendants have been granted several extensions of time to

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respond to his discovery requests does not establish good cause to grant his request unless the

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extensions impacted his ability to respond.

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II.

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Motion for Leave to Electronically File
Although the Eastern District of California is an electronic management/filing district,

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unrepresented persons are required to file and serve paper documents unless the assigned District

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Judge or Magistrate Judge grants leave to utilize electronic filing. Local Rule 133(a) & (b)(2). A

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request to use electronic filing by a pro se party as an exception to the rule may be made as a

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written motion setting out an explanation of reasons for the requested exception. Local Rule

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133(b)(3).

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Plaintiff’s motion sets forth the reasons he is requesting permission to electronically file.

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ECF No. 73 at 4. However, the motion does not make clear whether plaintiff is familiar with the

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requirements applicable to electronic filing in this court or whether he is aware of the hardware

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and software needed for electronic filing. Plaintiff will be given an opportunity to file a

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declaration in support of his motion that addresses whether he is aware of the requirements for

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electronic filing and whether he has access to the necessary hardware and software.

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III.

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Motion for Subpoena Duces Tecum
Plaintiff seeks a court order issuing a subpoena duces tecum and presumably service of

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the subpoena by the U.S. Marshal upon non-party Folsom State Prison. ECF No. 73 at 2-3.

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Plaintiff states that he is asking for “all documentations in regards to the said matter alongside of
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all grievance forms, request forms any videos made in regards to the situation” and “all video

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complaints 602 grievances ever filed and what have you not.” Id. at 2-3. The court construes the

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request as one for a signed subpoena under Federal Rule of Civil Procedure 45.

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A non-party may be compelled to produce documents for inspection and copying pursuant

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to a subpoena duces tecum. See Fed. R. Civ. P. 34(c), 45(a). In order to obtain documents in this

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way, plaintiff must fill out subpoena forms and ensure that each person is served with the

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subpoena by a non-party. Fed. R. Civ. P. 45(b). If the person’s attendance is required, plaintiff

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must tender to each person “the fees for one day’s attendance and the mileage allowed by law.”

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Fed R. Civ. P. 45(b)(1). The current requisite fee for each person is forty dollars per day, 28

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U.S.C. § 1821(b), and cannot be waived for a plaintiff proceeding in forma pauperis. See Dixon

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v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993).

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Plaintiff has not submitted a subpoena signed by the Clerk of the Court. Federal Rule of

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Civil Procedure 45(a)(3) requires that “[t]he clerk must issue a subpoena, signed but otherwise in

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blank, to a party who requests it. That party must complete it before service.” Therefore, at the

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outset, the Clerk of the Court will be directed to send plaintiff a blank subpoena form. A

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subpoena may direct a non-party, pursuant to Federal Rule of Civil Procedure 45, to produce

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documents or other tangible objects for inspection.

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Limitations on a subpoena include the relevance of the information sought as well as the

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burden and expense to the non-party in providing the requested information. Fed. R. Civ. P. 26,

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45. A motion for issuance of a subpoena duces tecum should be supported by clear identification

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of the documents sought and a showing that the records are obtainable only through the identified

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third-party. See, e.g., Davis v. Ramen, 1:06-cv-01216-AWI-SKO PC, 2010 WL 1948560, at *1

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(E.D. Cal. May 11, 2010); Williams v. Adams, No. 1:05-cv-00124-AWI-SMS PC, 2010 WL

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148703, at *1 (E.D. Cal. Jan. 14, 2010). “The Federal Rules of Civil Procedure were not intended

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to burden a non-party with a duty to suffer excessive or unusual expenses in order to comply with

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a subpoena duces tecum.” Badman v. Stark, 139 F.R.D. 601, 605 (M.D. Pa. 1991); see also, U.S.

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v. Columbia Broad. Sys., Inc., 666 F.2d 364, 368 (9th Cir. 1982) (court may award costs of

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compliance with subpoena to non-party). Non-parties are “entitled to have the benefit of this
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Court’s vigilance” in considering these factors. Badman, 139 F.R.D. at 605.

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Because Federal Rule of Civil Procedure 45(b) requires personal service of a subpoena,

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“[d]irecting the Marshal’s Office to expend its resources personally serving a subpoena is not

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taken lightly by the court.” Austin v. Winett, 1:04-cv-05104-DLB PC, 2008 WL 5213414, *1

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(E.D. Cal. Dec. 12, 2008); 28 U.S.C. § 1915(d). In order for the court to consider ordering the

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United States Marshal to serve a subpoena duces tecum on a non-party, plaintiff must submit to

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the court a completed subpoena form and the requisite fee. The form must describe the items to

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be produced with reasonable particularity and designate a reasonable time, place, and manner for

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production. Plaintiff must also show that he has not or cannot receive the documents he seeks by

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way of discovery propounded upon defendants. Failure to do so will result in denial of the

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motion.

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Plaintiff’s current motion will be denied without prejudice to a motion in the proper form.
IV.

Motion for Appointment of Counsel
The United States Supreme Court has ruled that district courts lack authority to require

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counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490

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U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the

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voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d

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1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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The test for exceptional circumstances requires the court to evaluate the plaintiff’s

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likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in

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light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328,

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1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances

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common to most pro se plaintiffs, such as lack of legal education and limited law library access,

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do not establish exceptional circumstances that would warrant a request for voluntary assistance

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of counsel. In the present case, the court does not find the required exceptional circumstances

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and plaintiff’s motion will be denied.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff shall have ten days from the date this order is filed to file a declaration in
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support of his request for an extension of time to submit discovery responses (ECF No. 73). The

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declaration should address (1) when the responses were originally due, (2) whether these are the

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same requests he previously received additional time to respond to, and (3) why he needs the

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extension.

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2. Plaintiff shall have ten days from the date this order is filed to file a declaration in

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support of his request for permission to use the court’s electronic filing system (ECF No. 73).

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The declaration should address whether he is aware of the requirements for electronic filing and

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whether he has access to the necessary hardware and software.

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3. Plaintiff’s motion for a subpoena duces tecum (ECF No. 73) is denied without
prejudice to a motion in proper form.
4. The Clerk of the Court is directed to provide plaintiff a signed but otherwise blank
subpoena duces tecum form with this order. See Fed.R.Civ.P. 45(a)(3).
5. Plaintiff’s motion for appointment of counsel (ECF No. 73) is denied.
DATED: March 17, 2015

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