Johnson v. Sheriff Department Plymouth et al

Filing 44

Judge Allison D. Burroughs: MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION FOR DISCOVERY AND MOTION FOR STANDBY COUNSEL. Plaintiff's Motion 42 for Discovery is DENIED. The Clerk shall provide to Plaintiff a blank subpoena form with a copy of this Order. Plaintiff's Motion 43 for standby counsel is DENIED with leave to renew as the litigation progresses. (Attachments: # 1 blank subpoena form) (PSSA, 4)

Case 1:19-cv-10256-ADB Document 44 Filed 09/08/20 Page 1 of 4

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

ISAIAH JOHNSON,
Plaintiff,
v.
OFFICER SELLINGER, LT. JOSEPH
BRIGGS,
Defendants.

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Civil Action No. 19-cv-10256-ADB

MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION FOR DISCOVERY
AND MOTION FOR STANDBY COUNSEL
BURROUGHS, D.J.
Currently pending before the Court are pro se plaintiff Isaiah Johnson’s (“Plaintiff”)
motions for discovery, [ECF No. 42], and appointment of standby counsel, [ECF No. 43].
Plaintiff, who is incarcerated at the Plymouth County Correctional Facility, alleges that his civil
rights were violated by Defendant correctional officers during an incident surrounding a cell
extraction.
The Court’s records indicate that Defendant Briggs filed an answer to the second
amended complaint on August 4, 2020, [ECF No. 34], and that the summons for Defendant
Sellinger was returned to the Court as unexecuted, with a notation that he is no longer employed
at the Plymouth County Correctional Facility. See [ECF No. 36]. On August 27, 2020, the
Court issued a scheduling order. [ECF No. 40].
Plaintiff’s one-page motion for counsel states as follows: “[n]ow comes the plaintiff to
beseech the honorable court for merciful standby counsel appointment due to [plaintiff’s] long
standing [cerebral-mental] idiosyncracy [sic].” [ECF No. 43]. When filing his second amended

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complaint on December 6, 2019, Plaintiff similarly sought appointment of counsel based on his
mental illness. [ECF No. 25]. On May 8, 2020, the Curt denied that motion without prejudice.
[ECF No. 30]. The Court has once again reviewed the pleadings in this case in light of the
factors outlined in DesRosiers v. Moran and declines at this time to appoint counsel to represent
Plaintiff. 949 F.2d 15, 24 (1st Cir. 1991) (“To determine whether there are exceptional
circumstances sufficient to warrant the appointment of counsel, a court must examine the total
situation, focusing, inter alia, on the merits of the case, the complexity of the legal issues, and
the litigant’s ability to represent himself. [The First Circuit] will overturn the denial of a request
for appointed counsel in a civil case only if the record, taken as a whole, reflects a manifest
abuse of the trial court’s broad discretion.” (internal citations omitted)).
Plaintiff has also moved for discovery. [ECF No. 42]. His one-page discovery motion
seeks copies of (1) cell camera footage; (2) complaints and grievances concerning the
Defendants; (3) Sellinger’s medical records following the incident; (4) disciplinary and incident
reports concerning the defendants; and (5) the policy governing protocol and procedures for cell
extractions. [Id.]. Plaintiff has not indicated whether he requested these items from the
Defendants and, if so, their response. Rule 26(d) of the Federal Rules of Civil Procedure
expressly states that a party may not seek discovery from any source before the parties have
conferred as required by Rule 26(f), except when otherwise authorized. Fed. R. Civ. P. 26.
Plaintiff may seek records from a party through a document request under Rule 34 of the
Federal Rules of Civil Procedure, served on the party on or before the close of discovery. See
Fed. R. Civ. P. 34. To the extent that Plaintiff seeks to compel a non-party to produce copies of
camera footage and other documents, the proper method for obtaining records is a subpoena
duces tecum pursuant to Rule 45 of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 45.

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Mindful of Plaintiff’s pro se status, the Court will direct the Clerk to include a blank
subpoena in the copy of this order that is mailed to Plaintiff. See Banks v. Joyce, No. 2:13-cv00324, 2014 WL 7330938, at *1 (D. Nev. Dec. 19, 2014) (construing inmate request for order
directing non-party to produce records as request for a subpoena duces tecum and directing Clerk
to issue the subpoena in blank and mail it to Plaintiff to fill out). Although Plaintiff is
proceeding in forma pauperis, he is responsible for arranging service of the subpoena duces
tecum and must bear the cost of such service. See id. (“Plaintiff must make arrangements to
serve the subpoena duces tecum and is responsible for the cost of service. Plaintiff should
carefully ready Rule 45(b) of the Federal Rules of Civil Procedure.”); see also Tabron v. Grace,
6 F.3d 147, 158–59 (3rd Cir. 1993) (“The in forma pauperis statute, 28 U.S.C. § 1915, permits
the waiver of prepayment of fees and costs for in forma pauperis litigants, see 28 U.S.C.
1915(a), and allows for payment by the United States for the expenses of ‘printing the record on
appeal in any civil or criminal case, if such printing is required by the appellate court,’ and of
‘preparing a transcript of pleadings before a United States magistrate in any civil or criminal
case, if such a transcript is required by the district court,’ 28 U.S.C. § 1915(b). There is no
provision in the statute for the payment by the government of the costs of deposition transcripts,
or any other litigation expenses, and no other statute authorizes courts to commit federal monies
for payment of the necessary expenses in a civil suit brought by an indigent litigant.”); Emrit v.
Natl. Grid, Inc., No. 14-cv-14769, 2015 WL 4254057, at *2 (D. Mass. July 14, 2015) (denying
indigent plaintiff costs of issuance of subpoenas, interrogatories, depositions, and other
discovery). This Court expresses no opinion on the merits of any such future document request.

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Accordingly:
1.

Plaintiff’s motion for discovery, [ECF No. 42, is DENIED. The Clerk shall
provide to Plaintiff a blank subpoena form with a copy of this Order.

2.

Plaintiff’s motion for standby counsel, [ECF No. 43], is DENIED with leave to

renew as the litigation progresses.
SO ORDERED.
September 8, 2020

/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
U.S. DISTRICT JUDGE

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