Randolph v. Lozovoy

          ORDER DENYING PLAINTIFF'S MOTION FOR ATTENDANCE OF WITNESSES AND FOR APPOINTMENT OF PRO BONO COUNSEL (ECF NOS. 73 & 76)

         I. BACKGROUND

         Colin Randolph (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's First Amended Complaint on his claim against defendant Lozovoy for deliberate indifference to serious medical needs in violation of the Eighth Amendment. (ECF Nos. 14 & 57).

         On November 25, 2019, Plaintiff filed a motion for attendance of witnesses and for appointment of pro bono counsel. (ECF No. 73). On December 9, 2019, Plaintiff filed a supplement. (ECF No. 76). On December 11, 2019, Defendant filed his opposition to the motion. (ECF No. 78). Plaintiff's motion is now before the Court.

         II. MOTION FOR ATTENDANCE OF WITNESSES

         In Plaintiff's motion, Plaintiff requests the attendance of two witnesses, Dr. Chen and Inmate Lawrence Bell. For the reasons that follow, Plaintiff's motion will be denied.

         1. Plaintiff's Request for the Attendance of Dr. Chen

         As the Court informed Plaintiff, “[i]f a prospective witness is not incarcerated, and he or she refuses to testify voluntarily, the witness must be served with a subpoena. Fed.R.Civ.P. 45. In addition, the party seeking the witness's presence must tender an appropriate sum of money for the witness. Id. In the case of an unincarcerated witness, the appropriate sum of money is the daily witness fee of $40.00 plus the witness's travel expenses. 28 U.S.C. § 1821.” (ECF No. 29, pgs. 9-10). “Because no statute authorizes the use of public funds for these expenses in civil cases, the tendering of witness fees and travel expenses is required even if Plaintiff was granted leave to proceed in forma pauperis.” (Id. at 10).

         Plaintiff has stated that he cannot provide the required witness fee and travel expenses. (ECF No. 76, p. 2). Accordingly, the Court will not direct the United States Marshals Service to serve a subpoena on Dr. Chen, and Plaintiff's request for the attendance of Dr. Chen will be denied. The Court notes that nothing in this order prevents Plaintiff from securing the voluntary attendance of Dr. Chen.

         2. Plaintiff's Request for the Attendance of Inmate Lawrence Bell

         On February 9, 2018, the Court issued a scheduling order. (ECF No. 29). In the scheduling order, the Court explained the procedures for obtaining the attendance of witnesses, and gave the parties until September 3, 2019, to file motions for the attendance of incarcerated witnesses. (Id. at 7-10). On September 25, 2019, the Court extended the deadline to October 17, 2019. (ECF No. 58, p. 2). On October 9, 2019, the Court extended the deadline to November 11, 2019. (ECF No. 62, pgs. 2-3). It appears that Plaintiff's motion for the attendance of inmate Lawrence Bell was mailed to the Court on November 19, 2019. (ECF No. 73, p. 4).

         Plaintiff explains that his motion was not timely filed because he “did not realize, know or suspect that a deadline existed beyond the pretrial statement that he met. In addition, Plaintiff literally in March lost all his legal property and informed the Court of this. Plaintiff requested that Court send him a scheduling order. Upon receipt it didn't state there was a deadline but that of November 4, 2019 at which time Plaintiff's pretrial statement was due….”

         Defendant is correct that Plaintiff did not adequately explain why his motion was not timely filed. Plaintiff does not dispute that he received a copy of the Court's scheduling order, which described the procedures for obtaining the attendance of incarcerated witnesses, and set a deadline for the filing of motions for the attendance of incarcerated witnesses. Plaintiff also does not dispute that he received the orders granting extensions of this deadline.

         It is true that Plaintiff informed the Court that he did not have access to his legal property, and that he requested a copy of the scheduling order. However, Plaintiff's request for a copy of the scheduling order was granted (ECF No. 62), and Plaintiff was served with a copy of the scheduling order. As described above, not only did the scheduling order provide a deadline for parties to file motions for the attendance of incarcerated witnesses, it also described the procedures for obtaining the attendance of incarcerated witnesses. Moreover, in granting Plaintiff's request for a copy of the scheduling order, the Court also extended Plaintiff's deadline to file a motion for the attendance of incarcerated witnesses. Despite receiving the procedures for obtaining the attendance of incarcerated witnesses and an extension of time to do so, Plaintiff did not timely file his motion.

         As Plaintiff did not timely file his motion for the attendance of Lawrence Bell, and as he failed to show excusable neglect for the late filing (or even good cause for an extension of time), Plaintiff's ...