Faunce v. Covello
- Proceeding
- district
- Area
- civil
- Panel
- Lupe Rodriguez (author)
Analysis
Plaintiff, a pro se prisoner, moved for an order requiring defendants to fax all case documents to a non-party prison Litigation Coordinator and requiring that coordinator to deliver them to Plaintiff within one business day. The court denied the motion, noting that Plaintiff failed to provide legal authority for the request and suggesting he seek continuances if mail delays affect his response times.
| What the court decided | The model |
|---|---|
Plaintiff's Motion for Order to R.J. Donovan Prison’s Litigation Coordinator, V. McCee, Requiring Service of Defense Documents on Plaintiff the Next Business Day After Receipt From Defense Counsel by Fax (ECF No. 95) is denied.“Accordingly, the Court DENIES Plaintiff’s motion.” | agree with court The court correctly identified that Plaintiff failed to cite any legal authority supporting the requested order. The request to compel a non-party prison employee to act as a service agent and guarantor of timely delivery is not a standard remedy under the Federal Rules of Civil Procedure or the in forma pauperis statute. The court appropriately noted that the proper remedy for alleged mail delays is to request a continuance, which is a recognized procedural mechanism. The denial is consistent with the principle that courts do not generally order non-parties to perform litigation tasks absent specific statutory or rule-based authority, which Plaintiff did not provide. |
The order itself: sound — The order is sound. It correctly identifies the lack of legal authority for the specific, non-standard relief requested. It distinguishes the request from standard service rules and provides a practical alternative (continuances) for addressing the underlying issue of mail delays. The citations, while from district courts, support the general principle that such requests are not granted absent specific statutory basis.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID W. FAUNCE, Case No.: 21cv363-MMA(LR)
12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION [ECF NO. 95] 14 J. MARTINEZ, et al., 15 Defendants. 16 17 18 On October 21, 2022, Plaintiff filed a “Motion for Order to R.J. Donovan Prison’s 19 Litigation Coordinator, V. McCee, Requiring Service of Defense Documents on Plaintiff 20 the Next Business Day After Receipt From Defense Counsel by Fax.” (ECF No. 95.) 21 Plaintiff asks the Court to do the following: 22 order the defendants to mail serve plaintiff and fax serve the Richard J. Donovan Correctional Facility Coordinator, V. McCee, all documents 23 related to this case, and order V. McCee to ensure that plaintiff receive[s] all 24 such documents within one business day of McCee’s receipt, i.e., Monday through Friday inclusive, state and federal holidays excluded. 25 26 (Id. at 4.) 27 In support, Plaintiff states that he does not have access to the Court’s electronic 28 filing system, the only way he could receive “defense filings” is by mail, and he did not 1 timely receive defense filings in the past. (Id. at 1, 3–4.) He further alleges that his legal 2 mail is frequently delayed and his outgoing legal mail “has been tampered with.” (Id. at 3 1.) Plaintiff also contends that “the only way that [he] can be assured of receiving all 4 filings and discovery documents from defense counsel is if a prison official who receives 5 such documents is held accountable for ensuring that plaintiff actually gets them and does 6 so in a timely manner,” and the prison’s Ligation Coordinator, V. McCee should be 7 charged with that task. (Id. at 1–2.) Plaintiff argues that the fax service to a prison 8 employee is “the most efficient way to ensure fairness and timely filing by [P]laintiff.” 9 (Id. at 3.) 10 The Court initially notes that its review of the docket indicates that all Court orders 11 in this case were mailed to Plaintiff, and no mail from the Court was returned 12 undelivered. (See Docket.) Further, Plaintiff’s correctional institution’s address listed in 13 the proof of service forms included in Defendants’ numerous pleadings filed in this case 14 matches Plaintiff’s address listed on the docket. (See ECF No. 15 at 14; ECF No. 26 at 3; 15 ECF No. 38 at 18; ECF No. 41 at 3; ECF No. 44 at 3; ECF No. 48 at 3; ECF No. 50-2 at 16 1; ECF No. 58 at 11; ECF No. 60 at 4; ECF No. 74 at 15; ECF No. 78 at 9; ECF No. 81 17 at 18; and ECF No. 86 at 206.) Plaintiff fails to provide any applicable legal authority to 18 support his motion for order requiring Defendants to fax serve nonparty Litigation 19 Coordinator McCee all documents related to this case, and requiring nonparty Litigation 20 Coordinator McCee to serve defense documents on Plaintiff the next business day after 21 receipt from defense counsel by fax. Accordingly, the Court DENIES Plaintiff’s motion. 22 See Guerrero v. McClure, No. CIV S–10–0318 GEB DAD P, 2011 WL 4566130, at *11 23 (E.D. Cal. Sept. 29, 2011) (denying plaintiff’s motion for appointment of legal assistant); 24 see also Coles v. Eagle, CIV. NO. 09-00167 LEK-BMK, 2011 WL 13350037, at *1 (D. 25 Hawaii, Mar. 31, 2011) (citing Tedder v. Odel, 890 F.2d 210, 211–12 (9th Cir. 1989) 26 (“The in forma pauperis statute, 28 U.S.C. § 1915, does not authorize payment of an 27 indigent litigant’s general litigation expenses.”). If Plaintiff requires additional time to 28 respond to any filings by Defendants, in light of any alleged delays associated with legal 1 || mail delivery at Plaintiff's correctional institution, Plaintiff may request a narrow 2 continuance of the deadline from the Court at that time. 3 IT IS SO ORDERED. 4 || Dated: November 3, 2022 2 LY 6 Honorable Lupe Rodriguez, Jr. 7 United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28