Merchant v. Smith

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Steven Sentre Merchant, No. CV-21-01593-PHX-JAT (ESW) 10 Plaintiff, ORDER 11 v. 12 Unknown Smith, et al., 13 Defendants. [15] 16 This Order sets forth the Court’s rulings on the pending Motions (Docs. 18-21) filed 17 by Plaintiff. 18 I. DISCUSSION 19 A. Plaintiff’s “Motion to Request for a [sic] Investigator” (Doc. 18) 20 Plaintiff requests that the Court appoint an investigator to assist Plaintiff in finding 21 evidence to support his case. The expenditure of public funds on behalf of an indigent 22 litigant is proper only when authorized by Congress. See Tedder v. Odel, 890 F.2d 210 , 23 211-12 (9th Cir. 1989) (citing United States v. MacCollom, 426 U.S. 317, 321 (1976)). 24 “The in forma pauperis statute does not authorize the expenditure of public funds for 25 investigators.” Woods v. Carey, No. CIV-S-04-1225-LKK-GGH-P, 2009 WL 78366 , at 26 *1 (E.D. Cal. Jan. 13, 2009) (citing 28 U.S.C. § 1915 ). The Court will deny Plaintiff’s 27 Motion (Doc. 18). [28] 1 B. Plaintiff’s “Motion for Court Appointed Council [sic]” (Doc. 19) 2 There is no constitutional right to the appointment of counsel in a civil case. See 3 Johnson v. U.S. Dep’t of Treasury, 939 F.2d 820, 824 (9th Cir. 1991); Ivey v. Bd of Regents 4 of the Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982). In pro se and in forma pauperis 5 proceedings, district courts do not have the authority “to make coercive appointments of 6 counsel.” Mallard v. United States District Court, 490 U.S. 296, 310 (1989). District 7 courts, however, do have the discretion to request that an attorney represent an indigent 8 civil litigant upon a showing of “exceptional circumstances.” 28 U.S.C. § 1915 (e)(1); 9 Agyeman v. Corrections Corp. Of America, 390 F.3d 1101, 1103 (9th Cir. 2004); Terrell 10 v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A determination with respect to 11 exceptional circumstances requires an evaluation of the likelihood of success on the merits 12 as well as the ability of Plaintiff to articulate his claims pro se in light of the complexity of 13 the legal issue involved. Id. “Neither of these factors is dispositive and both must be 14 viewed together before reaching a decision.” Id. (quoting Wilborn v. Escalderon, 789 F.2d 15 1328, 1331 (9th Cir. 1986)). 16 Having considered both elements, the Court does not find that exceptional 17 circumstances are present that would require the appointment of counsel in this case at this 18 time. Accordingly, Plaintiff’s Motion (Doc. 19) will be denied. 19 C. Plaintiff’s “Motion for the Courts to Subpoena Records, Video, Documents, etc from Department of Corrections and/or RRCC” (Doc. 20) [20] Plaintiff requests that the Court subpoena from the Department of Corrections and [21] the Red Rock Correctional Center pertinent documents from Plaintiff’s inmate file along [22] with numerous other items. It is not the Court’s role to complete subpoenas or discovery [23] requests on Plaintiff’s behalf. See Bias v. Moynihan, 508 F.3d 1212, 1219 (9th Cir. 2007) [24] (“A district court lacks the power to act as a party’s lawyer, even for pro se litigants.”); [25] Pliler v. Ford, 542 U.S. 225, 231 (2004) (federal “judges have no obligation to act as [26] counsel or paralegal to pro se litigants”) (italics in original); Barnes v. United States, 241 27 F.2d 252 (9th Cir. 1956) (noting pro se litigant does not have rights that a represented [28] litigant does not have). The Court will grant Plaintiff’s Motion (Doc. 20) only to the 1|| following extent: the Court will direct the Clerk of Court to send Plaintiff two subpoenas || duces tecum for completion. 3 D. Plaintiff's “Motion to Leave of Court Requesting Extention [sic]” (Doc. 21). 4 Plaintiff requests an extension of the “timeframe of filing discovery due to illness.” || (Doc. 21 at 2). The discovery deadline does not expire until July 11, 2022. (Doc. 14 at 2). || Defendant Smith has filed a Response (Doc. 23) construing Plaintiffs Motion as requesting an extension of time for Plaintiff to respond to Defendant’s First Set of Interrogatories and 8 || Requests for Production. Defendant states that Plaintiff has served his responses and the parties are working to meet and confer regarding deficiencies in the responses. The Court deems Plaintiffs responses to Defendant’s First Set of Interrogatories and Requests for 11 |) Production timely served. Plaintiff's Motion (Doc. 21) will be denied as moot. 12 Il. CONCLUSION 13 Based on the foregoing, 14 IT IS ORDERED denying Plaintiff's “Motion to Request for a [sic] Investigator” (Doc. 18). 16 IT IS FURTHER ORDERED denying Plaintiff's “Motion for Court Appointed 17 || Council [sic]” (Doc. 19). 18 IT IS FURTHER ORDERED granting Plaintiff's “Motion for the Courts to || Subpoena Records, Video, Documents, etc from Department of Corrections and/or RRCC”’ (Doc. 20) to the extent set forth herein. 21 IT IS FURTHER ORDERED directing the Clerk of Court to send Plaintiff two 22 || blank subpoenas duces tecum. Plaintiff shall complete the subpoena(s) and return them to 23 || the Clerk of Court. Upon receipt, and if properly completed, the Clerk of Court shall 24 || forward the subpoena(s) to the United States Marshals Service for service. 25 IT IS FURTHER ORDERED denying as moot Plaintiff's “Motion to Leave of || Court Requesting Extention [sic]” (Doc. 21) 27 Dated this 21st day of April, 2022. Eileen 8. Willett United States Magistrate Judge _3-