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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

SUSAN A. PRICE, No. CIV.S-04-1235 GEB DAD PS

Plaintiff,

v. ORDER

CALIFORNIA DEPARTMENT OF

CORRECTIONS, CORRECTIONAL

TRAINING FACILITY, SOLEDAD,

Defendant.

___________________________/

Plaintiff, proceeding pro se, has renewed her request for

appointment of counsel. As plaintiff previously has been advised,

three factors are relevant to the determination of whether counsel

should be appointed to represent a plaintiff in an employment

discrimination case: (1) plaintiff’s financial resources, (2) the

efforts already made by plaintiff to secure counsel, and (3) whether

plaintiff's claim has merit. Bradshaw v. Zoological Soc’y of San

Diego, 662 F.2d 1301, 1318 (9th Cir. 1981). Appointment of counsel

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is not a matter of right. Ivey v. Board of Regents, 673 F.2d 266,

269 (9th Cir. 1982). 

The court having granted plaintiff's request to proceed in

forma pauperis, plaintiff has made an adequate showing of indigency. 

The second factor above also has been satisfied, plaintiff having

submitted numerous pieces of correspondence between plaintiff and

various attorneys regarding plaintiff’s efforts to secure counsel,

with no counsel having elected to represent plaintiff. As to the

third factor, while the court has not prejudged the matter, it is not

convinced at this stage of the proceedings that plaintiff’s claim has

merit such that counsel should be appointed. Plaintiff also has

offered no argument in this regard. Accordingly, plaintiff’s renewed

motion for appointment of counsel will be denied.

Finally, plaintiff recently filed a “request for subpoena

duces tecum,” asking the court to order defendant to produce certain

documents. Plaintiff filed a similar “request for subpoena duces

tecum” seeking documents from non-party California State Employees

Association (“CSEA”). However, the court is not in a position to

grant plaintiff the relief she seeks in this regard. A party, such

as defendant, may be compelled to produce records or other evidence

in its possession or control in response to a Federal Rule of Civil

Procedure 34 “Request for Production.” In contrast, documents and

tangible evidence held by a non-party, such as CSEA, can be obtained

by serving a Federal Rule of Civil Procedure 45 subpoena, which is

issued by the Clerk of the Court at the request of the party seeking

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the documents. See William W. Schwarzer, et al., Federal Civil

Procedure Before Trial, § 11:1805, 11:1809 (2005). 

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff’s motion for appointment of counsel is

denied; and

2. Plaintiff’s requests for subpoena duces tecum are

denied. 

DATED: November 14, 2005.

DAD:th

ddad1\orders.prose\price1235.counsel.subpoena

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