(PC) Ramos v. Rocha ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL AJURIA RAMOS, No. 2:19-cv-0726 TLN KJN P 12 Plaintiff, 13 v. ORDER 14 I. ROCHA, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se. On June 11, 2021, plaintiff wrote a letter 18 stating he has no access to the prison law library unless he has a deadline or order on an active 19 case. Plaintiff claims he needs to stay the subpoena the defendant filed on letters plaintiff wrote 20 to his mother because they contain sensitive and private conversations, and needs to learn more 21 about subpoenas. Plaintiff asks the court to send him an order or, if possible, someone to help 22 plaintiff do research or file a motion, or contact the Honduras Consulate to assist him. 23 Standards Governing Subpoenas 24 Rule 45 of the Federal Rules of Civil Procedure governs subpoenas. A subpoena served 25 upon a third party may seek (1) testimony, (2) the production of documents, electronically stored 26 information or tangible things within the possession, custody or control of the witness, or (3) 27 inspection of premises. Fed. R. Civ. P. 45(a)(1)(iii). 28 //// 1 On timely motion, the court must quash or modify a subpoena that requires the disclosure 2 of privileged or other protected matter, or subjects a person to undue burden. Fed. R. Civ. P. 3 45(c)(3)(A). “Ordinarily a party has no standing to seek to quash a subpoena issued to someone 4 who is not a party to the action, unless the objecting party claims some personal right or privilege 5 with regard to the documents sought.” 9A Charles Alan Wright & Arthur R. Miller, Federal 6 Practice and Procedure, § 2459 (3d ed. 2008) (footnote omitted); see also Langford v. Chrysler 7 Motors Corp., 513 F.2d 1121, 1126 (2d Cir. 1975) (“In the absence of a claim of privilege a party 8 usually does not have standing to object to a subpoena directed to a non-party witness.”); United 9 States v. Tomison, 969 F.Supp. 587, 596 (E.D. Cal. 1997) (“A party only has standing to move to 10 quash the subpoena issued to another when the subpoena infringes upon the movant's legitimate 11 interests.”). 12 Discussion 13 Plaintiff’s letter is too vague to construe as a motion to quash the subpoena. It is unclear 14 when the subpoena was served on plaintiff’s mother; thus, the court cannot determine whether 15 such a motion is timely. Fed. R. Civ. P. 45(d)(2)(B) (requiring a movant to object to a subpoena 16 duces tecum “before the earlier of the time specified for compliance or 14 days after the subpoena 17 is served.”).1 And, because plaintiff’s mother is not a party to this action, it is unclear whether 18 plaintiff has standing to challenge such subpoena. 19 Further, plaintiff is reminded that he does have deadlines in this case. On March 31, 20 2021, a revised discovery and scheduling order issued. (ECF No. 64.) The parties must complete 21 discovery by July 22, 2021, subject to the specific orders included in the scheduling order, and the 22 pretrial motions deadline is October 14, 2021. 23 The court construes plaintiff’s request for someone to help him research, file a motion or 24 for legal help as a request for the appointment of counsel. 25 1 See also North American Co. for Life and Health Ins. v. Philpot, 2010 WL 4917065, *2-3 (S.D. 26 Cal. Nov. 24, 2010) (motion to quash filed before date noticed for compliance with record 27 subpoena was timely); Anderson v. Abercrombie and Fitch Stores, Inc., 2007 WL 1994059, at *8 (S.D. Cal. Jul. 2, 2007) (motion to quash filed after date specified for document production was 28 untimely). ] District courts lack authority to require counsel to represent indigent prisoners in section 2 | 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional 3 || circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28 4] U.S.C. § 1915(e)1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 5 || Housewnght, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional 6 || circumstances” exist, the court must consider plaintiffs likelihood of success on the merits as 7 || well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the 8 | legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not 9 || abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional 10 || circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of 11 | legal education and limited law library access, do not establish exceptional circumstances that 12 || warrant a request for voluntary assistance of counsel. 13 Having considered the factors under Palmer, the court finds that plaintiff failed to meet his 14 | burden of demonstrating exceptional circumstances warranting the appointment of counsel at this 15 | time. 16 Finally, plaintiff is advised that the court is unable to contact the Honduran Consulate on 17 | plaintiffs behalf, but provides the following contact information: Honduran Consulate, 3550 18 | Wilshire Blvd., #320, Los Angeles, CA 90010; 213-383-9244; Fax: 213-383-9306; website 19 || www.hondurasemb.org. 20 Accordingly, IT IS HEREBY ORDERED that plaintiffs request, construed as a motion 21 | for the appointment of counsel (ECF No. 65), is denied without prejudice. 22 | Dated: June 24, 2021 Aectl Aharon 24 KENDALL J. NE /ew/ramo0726.31+ UNITED STATES MAGISTRATE JUDGE 25 26 27 28