Toumbou v. Stockwell et al

Filing 58

ORDER RE: PLAINTIFF'S VARIOUS MOTIONS; granting 43 Plaintiff's Motion for Subpoenas; denying 44 Plaintiff's Motion for the Appointment of Counsel; granting 45 Motion requesting a copy of Eastern District of Washington Local Civi l Rules; granting 49 Plaintiff's Motion to Withdraw; denying as moot 46 Plaintiff's motion for a preliminary injunction; denying 51 Motion to Compel Production; denying 52 Motion Requesting the Court to Determine the Sufficiency of Defendants' Answers & Objections. Signed by Judge Thomas O. Rice. (REM, Case Administrator) **6 PAGES, PRINT ALL** (Ali Kane, Prisoner ID: 418107)

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FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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Aug 30, 2024

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SEAN F. MCAVOY, CLERK

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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ALI KANE, also known as
Abdoulaye Toumbou,
Plaintiff,
v.

NO. 2:23-CV-0204-TOR
ORDER RE: PLAINTIFF’S
VARIOUS MOTIONS

WILLIAM STOCKWELL, C.U.S.
M-unit; ISAAC MENDOZA,
Correctional Officer; CHLARSON,
Correctional Officer,
Defendants.
BEFORE THE COURT is Plaintiff’s Motion for Subpoenas (ECF No. 43),

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Motion for Temporary Appointment of Counsel (ECF No. 44), Motion for a Copy

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of the Local Civil Rules (ECF No. 45), Motion for a Preliminary Injunction (ECF

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No. 46), Letter to Withdraw the Motion for a Preliminary Injunction (ECF No. 49),

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Motion to Compel Production (ECF No. 51), and Motion for the Court to

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Determine the Sufficiency of Defendants’ Answers & Objections (ECF No. 52).

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This matter was submitted for consideration without oral argument. The Court has

ORDER RE: PLAINTIFF’S VARIOUS MOTIONS ~ 1

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reviewed the record and files herein (including Plaintiff’s Reply) and is fully

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informed. For the reasons discussed below, Plaintiff’s Motions at ECF Nos. 44,

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46, 51 and 52 are DENIED and Plaintiff’s Motions at ECF Nos. 43, 45 and 49

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are GRANTED.
DISCUSSION

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Plaintiff Ali Kane has filed various motions. The Court addresses each in
turn.
1. Motion for Subpoenas
Plaintiff moves for the Court to issue him 12 blank subpoenas. ECF No. 43.
This motion is granted.
This is Plaintiff’s second motion requesting blank subpoenas. ECF No. 39.

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The Court previously denied his request because Plaintiff had not specified

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whether he was seeking to depose his proposed witnesses or was instead soliciting

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their testimony at a hearing/or trial. ECF No. 40 at 2. The Court explained that, to

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the extent Plaintiff sought to compel a party’s attendance at a deposition, he had

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not complied with various procedural requirements. Id. at 3. The Court further

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forewarned Plaintiff that, even if it did issue him blank subpoenas, Plaintiff would

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be responsible for filing those subpoenas on the docket so the Court could review

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them for compliance with the Federal Rules of Civil Procedure before directing the

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Marshals Service to serve any intended witnesses. Id. at 4-6.

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Plaintiff’s renewed motion for the issuance of subpoenas specifies that he is

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requesting the presence of witnesses at trial or potentially “during a summary

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judgment hearing.” ECF No. 43. The Court grants this request, subject to the

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condition that Plaintiff file (1) his proposed subpoenas with the Court for review

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and (2) an attached motion, describing how the subpoenas meet the requirements

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of Fed. R. Civ. P. 45, before the Court considers directing service by the US

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Marshals. See Fed. R. Civ. P. 45(a)(3) (“The clerk must issue a subpoena, signed

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but otherwise in blank,” upon a party’s request). Plaintiff should carefully review

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the Court’s Order at ECF No. 40, pages 4-6, to ensure compliance with these

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requirements.
2. Motion for Appointment of Counsel
Plaintiff moves for the temporary appointment of counsel for purposes of
conducting discovery. ECF No. 44. This motion is denied.
Generally, a person has no right to counsel in civil actions. However, the

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court has discretion to designate counsel pursuant to 28 U.S.C. § 1915(e)(1) under

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“exceptional circumstances.” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).

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“When determining whether ‘exceptional circumstances’ exist, a court must

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consider ‘the likelihood of success on the merits as well as the ability of the

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petitioner to articulate his claims pro se in light of the complexity of the legal

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issues involved.” Id. (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir.

ORDER RE: PLAINTIFF’S VARIOUS MOTIONS ~ 3

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1983)).

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Plaintiff argues counsel is needed because Richard Sterett, attorney for

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Defendants, has been uncommunicative, Plaintiff feels Mr. Sterett has not taken his

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claims seriously and provided him with “100% useless” discovery. Even if true,

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these contentions do not amount to the kinds of exceptional circumstances

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warranting the appointment of counsel. Accordingly, the motion is denied.
3. Motion for Copy of Local Rules

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Plaintiff requests a copy of the Local Civil Rules for the United States

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District Court for the Eastern District of Washington. ECF No. 45. Plaintiff

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represents that he no longer has access to the law library or an electronic device on

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which he can review the rules due to prison policies surrounding library access.

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To ensure Plaintiff’s continued compliance with Court procedures, the

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Clerk's Office is instructed to send Defendant a copy of the Local Civil Rules. The

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motion is granted.
4. Motion for Preliminary Injunction & Letter to Withdraw

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Plaintiff moved for a preliminary injunction, ECF No. 46, but later wrote a

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letter to the Court requesting to withdraw that motion, ECF No. 49. Plaintiff’s

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request to withdraw is granted and Plaintiff’s motion for a preliminary injunction

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is denied as moot.

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//

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5. Motions to Compel & Determine the Sufficiency of Defendant’s

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Objections

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Plaintiff moves to compel production of various documents requested in his

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Requests for Production (RFPs). ECF No. 51. Plaintiff also requests that the

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Court “determine the sufficiency of Defendants’ objections/denials” and “require

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Defendants to review their denials [and] supplement those responses as necessary.”

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ECF No. 52 at 1.

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Both the Federal Rules of Civil Procedure and the Local Rules require the

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party bringing a motion to compel to include a certification that he has “in good

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faith conferred or attempted to confer with the other affected parties in an effort to

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resolve the dispute without court action.” LCivR 37; see also Fed. R. Civ. P.

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26(c)(1) (same).

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In response to all of Plaintiff’s RFPs, Defendants “request[ed] a meet and

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confer.” ECF No. 51 at 6-15. It does not appear such a conference has taken place

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yet, and Plaintiff has included no certification indicating whether he has attempted

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to confer with Defendants on these specific matters yet. At this time, then, the

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Court denies Plaintiff’s motion to compel and related motion regarding the

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sufficiency of Defendants’ objections. Plaintiff may bring a renewed motion after

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either conferring with Defendants and certifying that he has done so, or certifying

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that he has attempted to meet and resolve these issues in good faith.

ORDER RE: PLAINTIFF’S VARIOUS MOTIONS ~ 5

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ACCORDINGLY, IT IS HEREBY ORDERED:
1. Plaintiff’s Motion for Subpoenas, ECF No. 43, is GRANTED. The Clerk is

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directed to mail Plaintiff 12 signed but blank Subpoenas to Appear and

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Testify at a Hearing or Trial in a Civil Action (AO 88).

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2. Plaintiff’s Motion for a Copy of the Local Rules, ECF No. 45, is

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GRANTED. The Clerk’s Office is instructed to send Plaintiff a copy of the

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Local Civil Rules.

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3. Plaintiff’s Motion to Withdraw, ECF No. 49, is GRANTED, and Plaintiff’s

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Motion for a Preliminary Injunction, ECF No. 46, is DENIED AS MOOT.

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4. Plaintiff’s Motion for the Appointment of Counsel ECF No. 44, Motion to

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Compel (ECF No. 51), and for the Court to Determine the Sufficiency of

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Defendants’ Answers (ECF No. 52) are DENIED.

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The District Court Executive is directed to enter this Order, furnish copies to

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the parties, issue Plaintiff a copy of 12 blank but signed subpoenas, and issue

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Plaintiff a copy of the Local Civil Rules.

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DATED August 30, 2024.

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THOMAS O. RICE
United States District Judge

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ORDER RE: PLAINTIFF’S VARIOUS MOTIONS ~ 6