United States District Court, E.D. California
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE
is a state prisoner, proceeding without counsel, with a civil
rights action pursuant to 42 U.S.C. § 1983. Several
matters are pending before the court.
Motion for Omitted Counterclaim (ECF No. 50)
28, 2019, plaintiff filed a motion “for omitted
counterclaim to defendants' motion to dismiss.”
This motion is further briefing in support of plaintiff's
opposition to defendants' motion to dismiss. On September
5, 2019, the court denied defendants' motion to dismiss.
(ECF No. 56.) Because defendants' motion to dismiss is
resolved, plaintiff's motion for omitted counterclaims is
denied as unnecessary.
Motion to Reinstate Motion to Compel (ECF No. 60)
24, 2019, plaintiff filed a motion to compel. (ECF No. 49.)
On July 3, 2019, the undersigned recommended that
defendants' motion to dismiss be granted. (ECF No. 53.)
Because the undersigned recommended that defendants'
motion to dismiss be granted, the undersigned denied
plaintiff's motion to compel. (Id.) On September
5, 2019, the Honorable Kimberly J. Mueller denied
defendants' motion to dismiss. (ECF No. 56.)
pending motion, plaintiff requests that his June 24, 2019
motion to compel be reinstated because defendants' motion
to dismiss has been denied. (ECF No. 60). Good cause
appearing, plaintiff's motion to reinstate the motion to
compel is granted.
Motion to Compel (ECF No. 49)
requests that the court order the Office of Administrative
Hearings (“OAH”), a non-defendant, to provide him
with his 2015 Keyea hearing transcript free of charge. (ECF
No. 49.) Plaintiff previously requested his 2015 Keyhea
hearing transcript from the OAH. (Id. at 6-9.) The
OAH informed plaintiff that the cost of the transcript was
plaintiff proceeds in forma pauperis, the Supreme Court has
made clear that "the expenditure of public funds is
proper only when authorized by Congress[.]" United
States v. MacCollom, 426 U.S. 317, 321 (1976). The in
forma pauperis statue applicable to actions brought in
federal court, 28 U.S.C. § 1915, permits a Court to
authorize the commencement of an action without the
prepayment of fees. See 28 U.S.C. § 1915(a)(1).
The statute also allows for the payment by the United States
of the expenses of "printing the record on appeal in any
civil or criminal case, if such printing is required by the
appellate court," and of "preparing a transcript of
proceedings before a United States magistrate judge in any
civil or criminal case, if such transcript is required by the
district court." 28 U.S.C. § 1915(c). Nothing in
the statue authorizes payment of costs associated with
discovery. See Tabron v. Grace, 6 F.3d 147, 158-59
(3rd Cir. 1993); Tedder v. Odel, 890 F.2d 210,
211-12 (9th Cir. 1989).
reasons discussed above, plaintiff's motion for an order
compelling the OAH to provide him with his 2015 Keyhea
hearing transcript free of charge is denied.
Request for Subpoena (ECF No. 59)
October 7, 2019, plaintiff filed a letter requesting that the
Clerk of the Court send him a subpoena form so that he can
obtain crucial information and tangible documents.
subpoena may direct a non-party, pursuant to Federal Rule of
Civil Procedure 45, to produce documents or other tangible
objects for inspection. Plaintiff, proceeding in forma
pauperis, “is generally entitled to obtain service of a
subpoena duces tecum by the United States Marshal. 28 U.S.C.