Carr v. Fleming et al

Filing 159

MEMORANDUM DECISION AND ORDER RE: PLAINTIFF'S MOTIONS REQUESTING APPOINTMENT OF COUNSEL (DKTS. [134, 143 ), PLAINTIFF'S REQUESTS FOR SUBPOENAS (DKTS. 135 , 136 ). IT IS HEREBY ORDERED as follows: Plaintiffs Motion Requesting Appointmen t of Counsel Due to Exceptional Circumstances (Dkt. 134) and Plaintiffs Motion for Appointment of Counsel Due to Exceptional Circumstances (Dkt. 143) are GRANTED IN PART AND DENIED IN PART, as set forth above. The Court will attempt to find pro bono counsel to take on this matter. The Clerk of Court shall provide a courtesy copy of this Order to Wendy Messuri, the Courts Pro Bono Coordinator. Plaintiffs Requests for Subpoenas Duces Tecum (Dkt. 135) and Plaintiffs Requests for Subpoenas (Dkt. 136) are DENIED, without prejudice to refile as described in the decision. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (km)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO
Case No.: 1:13-cv-00380-REB
JODY CARR,

MEMORANDUM DECISION AND
ORDER RE:

Plaintiff,
vs.
C/O FLEMING, and SGT. MECHTEL,
Defendants.

PLAINTIFF’S MOTIONS
REQUESTING APPOINTMENT
OF COUNSEL
(DKTS. 134, 143)
PLAINTIFF’S REQUESTS FOR
SUBPOENAS
(DKTS. 135, 136)

Pending are Plaintiff’s Motion Requesting Appointment of Counsel Due to
Exceptional Circumstances (Dkt. 134), Plaintiff’s Requests for Subpoenas Duces Tecum
(Dkt. 135), Plaintiff’s Requests for Subpoenas (Dkt. 136), and Plaintiff’s Motion for
Appointment of Counsel Due to Exceptional Circumstances (Dkt. 143). Having carefully
considered the record, and being fully advised, the Court enters the following
memorandum decision and order.
BACKGROUND
Plaintiff Jody Carr is incarcerated in the custody of the Idaho Department of
Correction. Am. Compl. p. 2 (Dkt. 103). He brought this suit under 42 U.S.C. § 1983,
seeking damages, declaratory relief, and injunctive relief. See generally Compl. (Dkt. 3).
His Complaint raised various civil rights claims against four Idaho Department of
Correction employees. Id. Carr’s claims were dismissed on summary judgment and the
case was ordered closed (Dkts. 78, 79). Carr appealed (Dkt. 83) and the Ninth Circuit
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Court of Appeals affirmed in part and reversed in part this Court’s grant of summary
judgment. (Dkt. 92). The appellate court reversed (1) the grant of summary judgment to
Defendant Fleming; and (2) the denial of Carr’s motion for leave to file an amended
complaint to add a retaliation claim against Sergeant Mechtel. (Dkt. 92.) Subsequently,
Carr’s amended complaint was deemed filed (Dkt. 103).
Carr’s amended complaint raises three claims. He alleges that Defendant
correctional officer Crystal Fleming placed human feces into his food without his
knowledge. He alleges that the feces, and therefore also the food he consumed, was
contaminated with clostridium difficile bacteria which caused him to become violently ill
for a period of 16 months. Id. He claims that in doing that act Fleming violated his civil
rights by retaliating against him, by inflicting cruel and unusual punishment, and by
demonstrating deliberate indifference to his health and welfare. Id. He further alleges
that Defendant Sergeant Mechtel issued him two Disciplinary Offense Reports
(“D.O.R.s”) after Carr sent Fleming what Carr contends was a “settlement letter” in
conjunction with this lawsuit. Id. Carr claims that Mechtel violated his civil rights by
issuing the D.O.R.s to retaliate against Carr engaging in his protected First Amendment
rights in sending the letter. Id.
This Court previously denied (Dkt. 142) two motions for partial summary
judgment filed by Carr. Defendants have filed a motion for summary judgment (Dkt.
145) that remains pending and is not resolved by the instant memorandum decision and
order.

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LEGAL STANDARD
Unlike criminal defendants, prisoners and indigents in civil actions have no
constitutional right to counsel unless their physical liberty is at stake. Lassiter v. Dep’t of
Social Services, 452 U.S. 18, 25 (1981). Whether a court appoints counsel for indigent
litigants is within the court’s discretion. Wilborn v. Escalderon, 789 F.2d 1328, 1331
(9th Cir. 1986).
In civil cases, counsel should be appointed only in “exceptional circumstances.”
Id. To determine whether exceptional circumstances exist, the court should evaluate two
factors: (1) the likelihood of success on the merits of the case, and (2) the ability of the
plaintiff to articulate the claims pro se in light of the complexity of legal issues involved.
Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). Neither factor is dispositive and
both must be evaluated together. Id.
ANALYSIS
1. Plaintiff’s Requests for Counsel Are Granted in Part and Denied in Part.
The Court concludes that Carr has demonstrated some likelihood of success in this
litigation and that the complexity and novelty of the issues would support the
appointment of pro bono counsel. Moreover, Carr’s filings allege that he is “having
difficulties with a paralegal … refusing to mail my documents” and that the first mailing
of one of the instant motions was apparently unsuccessful. (Dkt. 136-1.) A credible
claim that his access to the courts is being restricted presents another circumstance
supporting the appointment of pro bono counsel. The Court has determined that it is

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appropriate to appoint counsel if possible. Good cause appearing, the Court will order
that court staff begin a search for pro bono counsel for Carr.
Carr is advised, however, that the federal court has no authority to require
attorneys to represent indigent litigants in civil cases under 28 U.S.C. § 1915(d). Mallard
v. U.S. Dist. Court for Southern Dist. of Iowa, 490 U.S. 296, 298 (1989). Rather, when a
court “appoints” an attorney, it can only do so if the attorney voluntarily accepts the
assignment. Id. There are no funds to pay the attorney’s fees of appointed counsel in
civil matters such as this one, and it is often difficult to find attorneys willing to work on
a case without payment. For these reasons, Carr should continue to attempt to obtain his
own counsel on a contingency or other basis. If the Court is unable to locate pro bono
counsel, and if Carr is unable to find his own counsel, then he will have to continue to
litigate this case pro se. Thus, Carr’s motions requesting the appointment of counsel are
granted to the extent that the Court will seek to locate pro bono counsel. The motions are
otherwise denied.
2. Plaintiff’s Requests for Subpoena Are Denied, With Leave to Refile.
Carr has asked this Court to issue ten subpoenas duces tecum (Dkt. 135) as well as
29 subpoenas targeting named individuals (Dkt. 136). As Defendants point out, Carr’s
subpoena requests do not comply with Federal Rule of Civil Procedure 45 in a variety of
ways. See Defs.’ Resp. and Objs. to Plf.’s Requests for Subpoenas 4–5 (Dkt. 144).
Defendants also argue that Carr’s subpoena requests are untimely, noting that subpoenas
are discovery and that fact discovery was to be completed by July 31, 2018. Id. at 3;
Case Management Order 2 (Dkt. 119).
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However, Carr’s requests for appointment of counsel allege that he has been
denied the opportunity to engage in certain discovery. He claims that, as an inmate, “he
is not permitted ‘inmate to inmate correspondence,’ he is not allowed the contact
information of IDOC officials or staff, addresses and such, he cannot contact witnesses,
nor gather the appropriate evidentiary exhibits and medical information.” Plf.’s Mot.
Requesting Appointment of Counsel 3–4 (Dkt. 134). These difficulties, Plaintiff argues,
greatly hinder his ability to investigate the facts necessary for him to pursue his case. Id.
at 4. His requested subpoenas target several inmates and IDOC personnel.
The Court is persuaded that such circumstances in this particular case, along with
Carr’s status as a pro se inmate untrained in the law, have hindered his opportunities to
engage in effective discovery in this matter. However, his requests for subpoenas cannot
be granted as drafted because they do not comply with Federal Rule of Procedure 45.
Moreover, Defendants are correct that the previously-set fact discovery deadline has
lapsed.
As discussed above, Carr’s request for the appointment of counsel is granted in
part and the Court will attempt to find volunteer counsel to assist Carr in prosecuting his
case. If such counsel is found or if counsel willing to take on the representation cannot
be found, the Court may consider reopening discovery or otherwise modifying the
deadlines set in the prior Case Management Order. At this point, however, both of Carr’s
requests for subpoenas will be denied as untimely, with leave to refile if Carr obtains
counsel or if the Court determines it would be in the interest of justice to permit
discovery to be reopened because of the difficulties Carr has described.
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ORDER
IT IS HEREBY ORDERED as follows:
1. Plaintiff’s Motion Requesting Appointment of Counsel Due to Exceptional
Circumstances (Dkt. 134) and Plaintiff’s Motion for Appointment of Counsel Due to
Exceptional Circumstances (Dkt. 143) are GRANTED IN PART AND DENIED IN
PART, as set forth above. The Court will attempt to find pro bono counsel to take on
this matter.
2. Pursuant to General Order Nos. 261 and 310, the Court’s Pro Bono Coordinator shall
contact the Pro Bono Liaison for assistance in finding pro bono counsel for Plaintiff
pursuant to the terms of this Order. The parties shall not contact the Coordinator or
the Liaison but shall await another Order from the Court identifying pro bono counsel,
if any can be found, who will be appointed to assist or represent Plaintiff.
3. The Clerk of Court shall provide a courtesy copy of this Order to Wendy Messuri, the
Court’s Pro Bono Coordinator.
4. Plaintiff’s Requests for Subpoenas Duces Tecum (Dkt. 135) and Plaintiff’s Requests
for Subpoenas (Dkt. 136) are DENIED, without prejudice to refile as described in the
decision.
DATED: March 28, 2019.

_____________________________
Honorable Ronald E. Bush
Chief U. S. Magistrate Judge

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