Hughes v. Lavender et al

Filing 123

OPINION AND ORDER - The motions for reconsideration (Dkt. ## 65 , 66 ) filed by plaintiff Mark Hughes on March 25, 2011, are DENIED. Signed by Senior Judge Peter C Economus on 7/28/11. (jr1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Mark A. Hughes,

:

Plaintiff,

:
:

v.
George Lavender, et al.,

Case No. 2:10-cv-674
JUDGE PETER C. ECONOMUS
Magistrate Judge Kemp

:

Defendants.

:
OPINION AND ORDER

This matter is before the Court on Plaintiff Mark Hughes’s
two separate motions by plaintiff Mark Hughes to reconsider the
order entered by the Magistrate Judge entered on March 15, 2011.
The first motion relates to that aspect of the Magistrate
Judges’s decision concerning his request that the United States
Marshal serve subpoenas on his behalf pursuant to 28 U.S.C.
§1915(d).

Although the Magistrate Judge granted this request in

regard to the subpoena duces tecum to be served on Dr. Maja
Babic, Mr. Hughes objects to the order’s implicit requirement
that he file a motion each time he wishes the Marshal to serve a
new subpoena.

Mr. Hughes also complains that the specific

subpoena he wished to have served was addressed to Allen’s
Pharmacy, and not Dr. Babic.

In his second motion, Mr. Hughes

objects to the Magistrate Judge’s denial of his request for
appointment of counsel.
motion.

Defendants did not respond to either

For the following reasons, the Court will deny the

motions for reconsideration.
I.
Fed. R. Civ. P. 72(a) provides that a party must serve and
file objections to a Magistrate Judge’s order within fourteen
days after being served with a copy of the order.

Because the

Magistrate Judge’s order involves nondispositive matters, this

Court’s reconsideration of the order is governed by the “clearly
erroneous or contrary to law ” standard of review contained in
Rule 72(a).

See United States v. Curtis, 237 F.3d 598, 603 (6th

Cir. 2001).

The “clearly erroneous” standard applies to factual

findings made by the Magistrate Judge while legal conclusions are
reviewed “under the more lenient ‘contrary to law’ standard.”
Gandee v. Glaser, 785 F.Supp. 684, 686 (S.D. Ohio 1992), aff’d,
19 F.3d 1432 (6th Cir. 1994)(table).

A finding is “clearly

erroneous” only when the reviewing court is left with the
definite and firm conviction that a mistake has been made.

See

In re Search Warrants Issued Aug. 29, 1994, 889 F.Supp. 296, 298
(S.D. Ohio 1995)(citations omitted).

A court’s review under the

“contrary to law” standard is “plenary, ... and it ‘may overturn
any conclusions of law which contradict or ignore applicable
precepts of law, as found in the Constitution, statutes, or case
precedent.’” Gandee, 785 F.Supp. at 686 (citations omitted).

It

is with these standards in mind that the Magistrate Judge’s order
will be reconsidered.
II.
The docket currently reflects that Deputy U.S. Marshal Mark
H. Stroh personally served the subpoena duces tecum directed to
Allen’s Pharmacy upon Ms. Michelle Kelly, a pharmacist, on July
6, 2011.

See Dkt. #115, p.4.

This same document shows that Dr.

Babic was also served with a subpoena duces tecum on July 6,
2011.

Therefore, Mr. Hughes’s objection is moot to the extent

that he believes the order referred to the wrong subpoena.
With respect to the remainder of the objection, the Court
finds that requiring Mr. Hughes to file a motion each time he
wishes the Marshal to serve a subpoena is neither clearly
erroneous nor contrary to law.

While 28 U.S.C. §1915(d) mandates

officers of the court to issue and serve all process in IFP
cases, a plaintiff who is proceeding in forma pauperis should
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only be entitled to subpoena witnesses after the Court determines
the relevancy of the requested documents or testimony and the
ability of the plaintiff to pay a witness fee, mileage and other
costs, if applicable.

Windsor v. Martindale, 175 F.R.D. 665, 672

(D. Col. 1997); Badman v. Stark, 139 F.R.D. 601, 605 (M.D. Pa.
1991).

See also Kean v. Van Dyken, 2006 WL 374502 at *5 (W.D.

Mich. Feb. 16, 2006)(prisoner’s motion for issuance of subpoenas
denied where he sought exception number of documents from nonparties for which he had no apparent ability to pay).
III.
The appointment of counsel in a civil case is not a
constitutional right and is warranted only in exceptional
circumstances.
2003).

Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir.

In this case, the Magistrate Judge denied the motion to

appoint counsel for Mr. Hughes because this case had not yet
progressed to the point that the merits of plaintiff’s claim
could be evaluated.

The Sixth Circuit has expressly approved of

the practice of postponing a decision to appoint counsel until
the case can be assessed on the merits.

Cleary v. Mukasey, 307

Fed.Appx. 963, 965 n.5 (6th Cir. 2009).
Mr. Hughes points out in support of his objection that his
claim has survived a motion for judgment on the pleadings.

Such

a ruling, however, is not a determination of the merits of a
claim because the Court must accept as true all well-pleaded
material allegations of the pleadings of the opposing party, and
may grant the motion only if the moving party is nevertheless
clearly entitled to judgment.

Southern Ohio Bank v. Merrill

Lynch, Pierce, Fenner & Smith, Inc., 479 F.2d 478, 480 (6th Cir.
1973).

Accordingly, the Court concludes that the Magistrate

Judge’s denial without prejudice of the plaintiff’s motion to
appoint counsel is neither clearly erroneous nor contrary to law.

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IV.
Based on the foregoing reasons, the motions for
reconsideration (Dkt.## 65,66) filed by plaintiff Mark Hughes on
March 25, 2011, are DENIED.
IT IS SO ORDERED.

/s/Peter C. Economus-July 28, 2011
United States District Judge

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