(PC) Hatton v. Triplett ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 ERIC DEWAYNE HATTON, No. 2:21-cv-1206 TLN DB P 11 Plaintiff, 12 v. ORDER 13 DUSTIN TRIPLET, 14 Defendant. 15 16 Plaintiff, a county inmate proceeding pro se with a civil rights action, has requested 17 appointment of counsel. (ECF No. 18.) Attached to the request for appointment of counsel is a 18 subpoena, partially filled out by plaintiff, which the court construes as a request to have the U.S. 19 Marshal serve a subpoena on the Rio Cosumnes Correctional Center (“RCCC”). (ECF No. 18-1.) 20 I. Appointment of Counsel 21 The United States Supreme Court has ruled that district courts lack authority to require 22 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 23 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 24 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 25 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 26 The test for exceptional circumstances requires the court to evaluate the plaintiff’s 27 likelihood of success on the merits and the ability of the plaintiff to articulate his claims, pro se, 28 in light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 2 common to most prisoners, such as lack of legal education and limited law library access, do not 3 establish exceptional circumstances that would warrant a request for voluntary assistance of 4 counsel. In the present case, the court does not find the required exceptional circumstances. 5 II. Request to have the U.S. Marshal Serve a Subpoena 6 Plaintiff seeks from RCCC (1) “video footage on 3-13-21 at the entry in front of J 7 Barracks at 0800 hours” and (2) “video footage on 3-13-21 in front of Control Room 30 at 0800 8 hours.” (ECF No. 18-1.) Plaintiff’s request appears reasonably calculated to lead to the discovery 9 of admissible evidence. However, a request for the issuance of a subpoena commanding the 10 production of documents (or video footage) from non-parties is subject to certain requirements. 11 Fed. R. Civ. P. 45. The court will consider granting a request for a subpoena duces tecum only if 12 the documents (or video footage) sought from the non-party are discoverable, are not equally 13 available to plaintiff, and are not obtainable from defendant through a request for production of 14 documents served to defendant’s counsel. Fed. R. Civ. P. 45(c); Fed. R. Civ. P. 34. 15 Discovery closed on October 21, 2022. On the court’s own motion, the court will re-open 16 discovery only as to the two items listed in plaintiff’s request for a subpoena. If plaintiff requests 17 these items through discovery and defendant objects to the requests, then a motion to compel is 18 the next required step. If the court rules the items are discoverable, but defendant does not have 19 care, custody, and control of the items, then plaintiff may seek a subpoena at that time. 20 Alternatively, if the court rules the items sought are not discoverable, then the inquiry ends. 21 In short, the court will not issue the subpoena without plaintiff first following the 22 procedure outlined above. Plaintiff and defendant shall comply with the time schedule set forth 23 below or seek modification for good cause shown. 24 III. Conclusion and Order 25 For the reasons set forth above, IT IS HEREBY ORDERED that: 26 1. Plaintiff’s request for the appointment of counsel (ECF No. 18) is DENIED. 27 2. The subpoena attached to plaintiff’s request for appointment of counsel is construed as 28 a request for service of a subpoena by the United States Marshal (ECF No. 18-1), and so 1 | construed, is DENIED without prejudice. 2 3. Sua sponte, the court modifies the discovery and scheduling order signed on June 20, 3 | 2022 (ECF No. 13) as follows: 4 a. Discovery is reopened only as to the two items for which plaintiff has sought to 5 have a subpoena served, as discussed herein. 6 b. As to these two items, plaintiff shall serve any Request for Production of 7 Documents (or video footage) under Fed. R. Civ. P. 34 to defendant’s counsel 8 within 30 days of service of this order. 9 c. Defendant’s response shall be due twenty (20) days after such a request is 10 served, instead of the forty-five (45) days for response to written discovery 11 requests provided for in the discovery and scheduling order. 12 d. Plaintiff shall file any motion to compel on or before January 13, 2023. 13 || Dated: October 24, 2022 14 15 16 30631 sb ‘BORAH BARNES UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28