Coleman v. Virga et al

Filing 61

ORDER signed by Magistrate Judge Kendall J. Newman on 10/17/2019 DENYING plaintiff's 50 motion for omitted counterclaim, 60 motion to reinstate his motion to compel filed 6/24/2019, 49 motion to compel, 59 request for a subpoena. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT COLEMAN,

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No. 2: 17-cv-0851 KJM KJN P

Plaintiff,

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v.

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T. VIRGA, et al.,

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ORDER

Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. Several matters are pending before the court.

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Plaintiff’s Motion for Omitted Counterclaim (ECF No. 50)

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On June 28, 2019, plaintiff filed a motion “for omitted counterclaim to defendants’ motion

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to dismiss.” This motion is further briefing in support of plaintiff’s opposition to defendants’

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motion to dismiss. On September 5, 2019, the court denied defendants’ motion to dismiss. (ECF

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No. 56.) Because defendants’ motion to dismiss is resolved, plaintiff’s motion for omitted

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counterclaims is denied as unnecessary.

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Plaintiff’s Motion to Reinstate Motion to Compel (ECF No. 60)

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On June 24, 2019, plaintiff filed a motion to compel. (ECF No. 49.) On July 3, 2019, the

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undersigned recommended that defendants’ motion to dismiss be granted. (ECF No. 53.)

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Because the undersigned recommended that defendants’ motion to dismiss be granted, the
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undersigned denied plaintiff’s motion to compel. (Id.) On September 5, 2019, the Honorable

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Kimberly J. Mueller denied defendants’ motion to dismiss. (ECF No. 56.)

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In the pending motion, plaintiff requests that his June 24, 2019 motion to compel be

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reinstated because defendants’ motion to dismiss has been denied. (ECF No. 60). Good cause

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appearing, plaintiff’s motion to reinstate the motion to compel is granted.

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Plaintiff’s Motion to Compel (ECF No. 49)

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Plaintiff requests that the court order the Office of Administrative Hearings (“OAH”), a

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non-defendant, to provide him with his 2015 Keyea hearing transcript free of charge. (ECF No.

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49.) Plaintiff previously requested his 2015 Keyhea hearing transcript from the OAH. (Id. at 6-

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9.) The OAH informed plaintiff that the cost of the transcript was $422. (Id.)
Although plaintiff proceeds in forma pauperis, the Supreme Court has made clear that "the

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expenditure of public funds is proper only when authorized by Congress[.]" United States v.

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MacCollom, 426 U.S. 317, 321 (1976). The in forma pauperis statue applicable to actions

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brought in federal court, 28 U.S.C. § 1915, permits a Court to authorize the commencement of an

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action without the prepayment of fees. See 28 U.S.C. § 1915(a)(1). The statute also allows for

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the payment by the United States of the expenses of "printing the record on appeal in any civil or

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criminal case, if such printing is required by the appellate court," and of "preparing a transcript of

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proceedings before a United States magistrate judge in any civil or criminal case, if such

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transcript is required by the district court." 28 U.S.C. § 1915(c). Nothing in the statue authorizes

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payment of costs associated with discovery. See Tabron v. Grace, 6 F.3d 147, 158-59 (3rd Cir.

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1993); Tedder v. Odel, 890 F.2d 210, 211-12 (9th Cir. 1989).

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For the reasons discussed above, plaintiff’s motion for an order compelling the OAH to

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provide him with his 2015 Keyhea hearing transcript free of charge is denied.

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Plaintiff’s Request for Subpoena (ECF No. 59)

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On October 7, 2019, plaintiff filed a letter requesting that the Clerk of the Court send him
a subpoena form so that he can obtain crucial information and tangible documents.
A subpoena may direct a non-party, pursuant to Federal Rule of Civil Procedure 45, to
produce documents or other tangible objects for inspection. Plaintiff, proceeding in forma
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pauperis, “is generally entitled to obtain service of a subpoena duces tecum by the United States

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Marshal. 28 U.S.C. § 1915(d).” Heilman v. Lyons, 2010 WL 5168871 at *1 (E.D. Cal. Dec. 13,

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2010).

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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, 2008 WL 5213414 *1 (E.D. Cal. Dec. 12, 2008); 28

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U.S.C. § 1915(d). Limitations on a subpoena include the relevance of the information sought as

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well as the burden and expense to the non-party in providing the requested information. Fed. R.

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Civ. P. 26, 45. A motion for issuance of a subpoena duces tecum should be supported by clear

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

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the identified third-party. See, e.g., Davis v. Ramen, 2010 WL 1948560, at *1 (E.D. Cal. May 11,

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2010). “The Federal Rules of Civil Procedure were not intended to burden a non-party with a

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duty to suffer excessive or unusual expenses in order to comply with a subpoena duces tecum.”

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Badman v. Stark, 139 F.R.D. 601, 605 (M.D. Pa. 1991). Non-parties are “entitled to have the

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benefit of this Court's vigilance” in considering these factors. Badman, 139 F.R.D. at 605.

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Plaintiff’s request for a subpoena is not well supported because plaintiff does not identify

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the documents sought by the subpoena or the non-party on whom it would be served. For these

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reasons, plaintiff’s request for a subpoena is denied.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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2. Plaintiff’s motion to reinstate his motion to compel filed June 24, 2019 (ECF No. 60)

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Plaintiff’s motion for omitted counterclaim (ECF No. 50) is denied;

is granted;

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3. Plaintiff’s motion to compel (ECF No. 49) is denied;

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4. Plaintiff’s request for a subpoena (ECF No. 59) is denied.

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Dated: October 17, 2019

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