(PC) Casto v. Newsom ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 HERSHEL WAYNE CASTRO, II, Case No. 2:19-cv-02209-KJM-JDP (PC) 12 Plaintiff, ORDER (1) DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF 13 v. COUNSEL, (2) GRANTING IN PART PLAINTIFF’S REQUEST FOR SUBPOENA 14 NEWSOME, et al., FORMS, AND (3) GRANTING THE PARTIES’ JOINT MOTION TO MODIFY 15 Defendants. THE DISCOVERY AND SCHEDULING ORDER 16 ECF Nos. 30, 31, 33 17 18 19 Plaintiff, an inmate proceeding without counsel and in forma pauperis, has filed a motion 20 for appointment of counsel. ECF Nos. 30. 21 Plaintiff does not have a constitutional right to appointed counsel in this action, see Rand 22 v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court lacks the authority to require an 23 attorney to represent plaintiff. See Mallard v. U.S. District Court for the Southern District of 24 Iowa, 490 U.S. 296, 298 (1989). I may request the voluntary assistance of counsel. See 28 25 U.S.C. § 1915(e)(1) (“The court may request an attorney to represent any person unable to afford 26 counsel”); Rand, 113 F.3d at 1525. However, without a means to compensate counsel, I will seek 27 volunteer counsel only in exceptional circumstances. In determining whether such circumstances 28 exist, “the district court must evaluate both the likelihood of success on the merits [and] the 1 ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues 2 involved.” Rand, 113 F.3d at 1525 (internal quotation marks and citations omitted). 3 I cannot conclude that exceptional circumstances requiring the appointment of counsel are 4 present here. Contrary to plaintiff’s contention, the allegations in the complaint are not 5 exceptionally complicated. Further, plaintiff has not demonstrated that he is likely to succeed on 6 the merits. For these reasons, plaintiff’s motion to appoint counsel, ECF No. 30, is denied 7 without prejudice. 8 I may revisit this issue at a later stage of the proceedings if the interests of justice so 9 require. If plaintiff later renews his request for counsel, he should provide a detailed explanation 10 of the circumstances that he believes justify appointment of counsel in this case. 11 Plaintiff also requests that he be sent twenty form subpoenas and that the U.S. Marshal 12 serve the subpoenas. ECF No. 31. Federal Rule of Civil Procedure 45(a)(3) provides that “[t]he 13 clerk must issue a subpoena, signed but otherwise in blank, to a party who requests it.” However, 14 before a subpoena is issued, the court must ensure that the party serving the subpoena has taken 15 reasonable steps to avoid imposing an undue burden or expense on the person or entity to be 16 served with the subpoena. Fed. R. Civ. P. 45(d)(1); see Austin v. Winett, 1:04-cv-05104-DLB PC, 17 2008 U.S. Dist. LEXIS 103279, at *2 (E.D. Cal. Dec. 11, 2008) (“[d]irecting the Marshal’s Office 18 to expend its resources personally serving a subpoena is not taken lightly by the court.”). 19 Plaintiff has not shown that the information he seeks from the subpoenas cannot be 20 obtained from a defendant through a properly served discovery request. Indeed, plaintiff does not 21 identify the information he is attempting to obtain or the individuals whom he seeks to serve with 22 the subpoenas. Accordingly, plaintiff’s motion for service of subpoenas by the U.S. Marshal, 23 ECF No. 31, is denied. However, I will direct the Clerk of Court to send plaintiff five blank 24 subpoena forms. If necessary, plaintiff may request additional subpoena forms. Plaintiff is 25 advised that I will not direct the U.S. Marshall to serve a subpoena unless plaintiff first 26 demonstrates that the information sought by the subpoena cannot be obtained from defendants 27 through discovery. 28 Lastly, the parties have filed a stipulation to modify the November 18, 2020 discovery and 1 | scheduling order. ECF No. 33. The stipulation, which I construe as a joint motion, seeks to 2 || extend all deadlines by sixty days. Good cause appearing, the parties’ joint motion to modify the 3 | scheduling order is granted. 4 Accordingly, it is hereby ORDERED that: 5 1. Plaintiffs motion for appointment of counsel, ECF No. 30, is denied. 6 2. Plaintiffs motion for form subpoenas, ECF No. 31, is granted in part, and the Clerk of 7 | Court shall send plaintiff five blank subpoena forms. Plaintiff's request for the U.S. Marshal to 8 || serve subpoenas is denied without prejudice. 9 3. The parties’ stipulation to modify the scheduling order, construed as a joint motion, 10 | ECF No. 33, is granted. The November 18, 2020 discovery and scheduling order is modified as 11 | follows: 12 a. The deadline for completion of all discovery, including filing all motions to 13 | compel discovery, is extended to June 29, 2021. Absent good cause, discovery motions will not 14 | be filed after the discovery deadline. All requests for discovery pursuant to Fed. R. Civ. P. 31, 15 | 33, 34, or 36 shall be served not later than April 20, 2021. 16 b. The deadline for plaintiff to file a motion to amend the complaint is extended to 17 | June 29, 2021. 18 c. The deadline for filing dispositive motions is extended to October 5, 2021. 19 | Ir IS SO ORDERED. 21 | Dated: _ March 1, 2021 sa JEREMY D,. PETERSON 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28