Moon v. Jordan et al

Filing 42

MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that Second Motion for Appointment of Counsel (ECF No. 40) is DENIED, in part, and GRANTED, in part. The Court will not appoint counsel for Plaintiff. IT IS FURTHER ORDERED that the Clerk of the Court shall send ten blank "Subpoena in a Civil Case" forms to plaintiff. IT IS FURTHER ORDERED that if plaintiff submits any subpoenas duces tecum to this Court, he must also submit a memorandum which explains as to each subpoena (1) why the documents he seeks are relevant to his case, (2) why he believes the entity or individual subpoenaed has possession of relevant documents, and (3) how he will provide the necessary costs, if any, related to document production. Signed by District Judge Ronnie L. White on 2/28/17. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

DARNELL WESLY MOON.,

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Plaintiff,
v.

JOHN JORDAN, et al .,
Defendants.

No. 1:15-CV-167 RLW

MEMORANDUM AND ORDER
This matter is before the Court on pro se plaintiff Darnell Wesly Moon's Second Motion
for Appointment of Counsel (ECF No. 40) and Motion to Add Additional Parties (ECF No. 41 ).
The Court will construe Moon's Motion for Appointment of Counsel as a motion for service of
subpoenas by the United States Marshals Service, in addition to a request for counsel.
A. Motion for Appointment of Counsel

In Plaintiffs Second Motion for Appointment of Counsel, Moon claims that " [w]ithout the
assistance of counsel, there is no way . . . that the plaintiff can conduct depositions on the
defendants." (ECF No. 40).

Moon's statement, however, is incorrect. Fed. R. Civ. P. 26(b)(l)

provides, ""Unless otherwise limited by court order, the scope of discovery is as follows: Parties
may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or
defense and proportional to the needs of the case, considering the importance of the issues at stake
in the action, the amount in controversy, the parties ' relative access to relevant information, the
parties' resources, the importance of the discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its likely benefit." The Court, however, has the
"discretionary power to refuse to subpoena witnesses and to prevent abuse of its process in both

civil and criminal proceedings." Manning v. Lockhart, 623 F.2d 536, 539 (8th Cir. 1980) (per
curiam). This power should be exercised to protect the resources of the Court and the Marshals
Service, and to prevent harassment and undue expense of other parties and non-parties. See, e.g.,
Lloyd v. McKendree, 749 F.2d 705, 707 (11th Cir. 1985).

Courts exercising inherent supervisory power over in forma pauperis subpoenas generally
consider factors such as the relevance and materiality of the information requested and the
necessity of the particular testimony or documents to proving the indigent's case. See Jackson v.
Brinker, 1992 WL 404537, at *6 (S.D. Ind. Dec. 21, 1992); Tuvalu v. Woodford, 2006 WL

3201096, at *5 (E.D. Cal. Nov. 2, 2006) ("[A] party's ability to use a subpoena duces tecum is
circumscribed by the relevance standards of Federal Rule of Civil Procedure 26(b)(l)[.]" When
reviewing subpoenas duces tecum directed to non-parties, a court should also examine issues
related to the expected compliance costs in light of Rule 45(c)(2)(B)'s provision that non-parties be
protected against significant expense. Jackson, 1992 WL 404537, at *5.
If a court finds that an indigent party's requests for issuance and service of
subpoenae duces tecum directed to a non-party is frivolous, requests immaterial or
unnecessary information, is unduly burdensome, would be reasonably certain to
result in the indigent's responsibility for significant compliance costs for which he
cannot provide, or is otherwise unreasonable or abusive of the court's process, the
court may relieve the Marshals Service of its duty under § 1915(c) to serve the
subpoenae.

Id. at *7.

Moon may request subpoenas from the Court. The Court, however will require Moon to
demonstrate the relevance or materiality to the present case of the subpoenas and/or documents
sought.
Finally, although Moon has been granted in forma pauperis status under 28 U.S.C. § 1915,
nothing in the statute authorizes or permits the Court to waive the expense requirements of Rule

45 . See generally McNeil v. Lowney, 831F.2d1368, 1373 (7th Cir. 1987), cert. denied, 485 U.S.
965 (1988); Badman v. Stark, 139 F.R.D. 601, 605-06 (M.D. Pa. 1991); Leadbetter v. City of Fort
Wayne, 2007 WL 2323109, at *2 n.2 (N.D. Ind. Aug. 10, 2007) (citing cases). If Moon were

required to file a motion to compel, or if the subpoenaed parties objected to the subpoenas, the
Court could condition an order requiring document production upon Moon's advancing the
copying costs for those documents. Nothing in the record provides the Court with a basis to
conclude that Moon has the ability to provide for the costs of his requested discovery.
The Clerk of the Court will be directed to send Moon ten blank subpoena forms. Moon
may fill out the forms and return them to this Court for service as appropriate. Moon should not
sign the subpoenas, which will be signed by the Clerk after they are returned to the Court. If
Moon chooses to submit any subpoenas duces tecum to this Court, he must also submit a
memorandum which explains as to each subpoena (1) why the documents he seeks are relevant to
his case, (2) why he believes the entity or individual subpoenaed has possession of relevant
documents, and (3) how he will provide the necessary costs, if any, related to document
productions.
Moon is cautioned that before he serves a Rule 45 subpoena duces tecum, he must serve the
defendant with a notice that the subpoena will be issued. See Rule 45(b )(1 ). Failure to comply
with the prior notice requirement could result in the imposition of sanctions, including the
exclusion of any evidence produced or the imposition of monetary sanctions. See 9 James Wm.
Moore, et al. , Moore's Federal Practice,§ 45.21 [3][a] (3d ed. 2009). Adequate notice requires
Moon to specifically identify the entities or persons he seeks to subpoena, and the documents he is

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requesting.

Otherwise, the defendant is not given a reasonable opportunity to object to the

production. See id.
B. Motion to Add Additional Parties
In the Motion to Add Additional Parties, Moon asks the Court to stay the deadline for
joinder of additional parties until he has time to identify some unknown individuals as defendants.
(ECF No . 41). This Court has already granted Moon leave to file an Amended Complaint and
extended the deadlines in this case. The Court will not permit an open-ended deadline for Moon
to potentially identify more defendants . Moon may be permitted to amend the complaint upon a
motion showing good cause. See Fed. R. Civ. P. 16(b)(4) ("A schedule may be modified only for
good cause and with the judge's consent."). Moon' s motion is denied.
According! y,

IT IS HEREBY ORDERED that Second Motion for Appointment of Counsel (ECF No.
40) is DENIED, in part, and GRANTED, in part. The Court will not appoint counsel for Plaintiff.

IT IS FURTHER ORDERED that the Clerk of the Court shall send ten blank "Subpoena
in a Civil Case" forms to plaintiff. 1

IT IS FURTHER ORDERED that if plaintiff submits any subpoenas duces tecum to this
Court, he must also submit a memorandum which explains as to each subpoena (1) why the
documents he seeks are relevant to his case, (2) why he believes the entity or individual
subpoenaed has possession of relevant documents, and (3) how he will provide the necessary
costs, if any, related to document production.
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For purposes of Rule 45 document production, plaintiff should only check the box on the
subpoena form by the statement, "YOU ARE COMMANDED to produce and permit inspection
and copying of the following documents or objects at the place, date, and time specified below (list
documents or objects):" .
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IT IS FINALLY ORDERED that Motion to Add Additional Parties (ECF No. 41) is
DENIED, without prejudice.

Dated this 28th day of February, 2017.

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RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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