Tripp v. Clark County et al, No. 2:2017cv01964 - Document 110 (D. Nev. 2019)
Court Description: ORDER Denying without prejudice Plaintiff's 44 Motion to Amend First Amended Complaint. Plaintiff's 58 Motion to Strike Response to Motion to Amend is DENIED. Plaintiff's 53 Motion for Appointment of Counsel is GRANTED. This case is referred to the Pilot Pro Bono Program. Plaintiff's 67 Motion for Service on Unserved Defendants is GRANTED. Plaintiff's 75 Motion to Substitute John Doe #1 for True Identities; and Request an Order to Serve Newly Named Defen dants is GRANTED. Plaintiff's 76 Motion to Substitute John Doe #1 for True Identities; and Request an Order to Serve Newly Named Defendants is GRANTED. Plaintiff's 82 Motion to Substitute Parties is DENIED without prejudice. Plaint iff must fill out the listed forms and file them with the Court by 1/3/2020. Upon receipt of the proposed summonses and completed USM-285 forms from Plaintiff, the Clerk of Court must issue the summonses and deliver the summonses, the USM-285 fo rms, a copy of the First Amended Complaint, and a copy of this order to the U.S. Marshal for service.Plaintiff's 69 Motion to File Discovery Exhibits, or Alternatively, Motion for Settlement Conference is DENIED. Defendants' 70 Motion for an Extension is GRANTED. The discovery deadlines are as follows: Discovery deadline 5/30/2020, Dispositive Motions 6/29/2020, Pretrial Order 7/29/2020. Plaintiff's 91 Motion to Deny Motion to Extend Time for Discovery is DENIED. Plaintiff's 94 Motion Seeking Status of Pending Motions is DENIED. Signed by Magistrate Judge Brenda Weksler on 12/2/2019. (Copies have been distributed pursuant to the NEF; cc: Pro Bono liaison; 6 summonses, 6 USM-285 forms, and Order mailed to Plaintiff - SLD)
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Tripp v. Clark County et al Doc. 110 1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 *** 6 JUSTIN L. TRIPP, 7 Plaintiff, ORDER 8 9 Case No. 2:17-cv-1964-JCM-BNW v. CLARK COUNTY, et al., 10 Defendants. 11 12 Presently before the Court are eleven motions (ECF Nos. 44, 53, 58, 67, 69, 70, 75, 76, 13 82, 91, 94), which the Court will address following a short recitation of the background of this 14 case. 15 I. Background Plaintiff is a pro se prisoner in the custody of the Federal Bureau of Prisons. This case 16 17 arises from Plaintiff’s allegations that: in March of 2016, he was arrested by Officers Torres and 18 Rose. While being arrested, the officers beat him with their fists and metal batons. Plaintiff lost 19 consciousness twice and suffered several injuries, including a facial contusion, dozens of 20 superficial injuries, a dislocated shoulder, and broken arm. After the beating ended, officers 21 handcuffed Plaintiff behind his back, which caused extreme pain. He was then taken to a hospital 22 to treat his injuries where, among other things, he was given a sling for his broken arm. After this, 23 he was taken to the Clark County Detention Center (CCDC) and handcuffed to a bench for 24 approximately 24 hours. During this time, he could not stand up, lie down, use the restroom, get 25 water, or feed himself and was in extreme pain. A few days later, Officer Esparza at CCDC took 26 his sling away from him even though hospital staff told Plaintiff he was to wear it for several 27 weeks. 28 Dockets.Justia.com As a result of these alleged events, Plaintiff filed a complaint against numerous defendants 1 2 and an in forma pauperis application. Before screening Plaintiff’s complaint, the Court sent 3 Plaintiff forms and instructions for filing a Section 1983 complaint and gave him 30 days to file 4 an amended complaint. (EC No. 8.) Plaintiff filed an amended complaint on January 7, 2019. 5 (ECF No. 14.) The Court reviewed the First Amended Complaint and determined that it stated 6 five plausible claims: (1) Fourth Amendment excessive force against defendants Torres and Rose; 7 (2) Fourteenth Amendment inadequate medical care against defendants Rose, Torres, and John 8 Doe #1; (3) Fourteenth Amendment conditions of confinement against defendant John Doe #1; 9 (4) Fourteenth Amendment inadequate medical care against defendants NaphCare, Inc., Dr. 10 Duran, Eric Lopez, nurse Rachel, and John Does #2, 3, 4, 5, and 6; and (5) Fourteenth 11 Amendment inadequate medical care against defendant Esparza. (ECF No. 18 (Screening Order).) 12 The Court also dismissed defendants Clark County, Las Vegas Metropolitan Police Department 13 (LVMPD), Andrea Beckman, and Dr. Johnson without prejudice. (Id.) 14 Plaintiff’s Motions to Amend First Amended Complaint and to Strike Defendants’ Response to This Motion (ECF Nos. 44 and 58) II. 15 A. 16 17 The Parties’ Arguments Plaintiff filed a motion to amend on March 18, 2019. (ECF No. 44.) Defendants 18 responded on April 1, 2019. (ECF No. 47.) Plaintiff replied on April 15, 2019 and moved the 19 Court to strike Defendants’ response. (ECF Nos. 58, 59). To this motion to strike, Defendants 20 responded (ECF No. 66) but Plaintiff did not reply. 21 In Plaintiff’s proposed Second Amended Complaint, he attempts to add additional factual 22 allegations to make out Monell claims. That is, he attempts to make out claims that LVMPD, 23 CCDC,1 and Clark County have customs or policies of “keeping detainees in severe pain,” 24 25 26 27 28 1 As this Court previously noted, under Nevada law and federal case law, CCDC is not a separate legal entity distinct from Clark County and cannot be sued. “CCDC is a department of Clark County and not an independent legal entity. NRS 41.0305. Therefore, it cannot be sued. Wayment v. Holmes, 912 P.2d 816, 819–20 (Nev. 1996); Wright v. City of Las Vegas, Nev., 395 F. Supp. 2d 789, 794 (S.D. Iowa 2005) (“In Nevada, political subdivisions may be sued; departments of political subdivisions may not.” (citing NRS 41.031(1), (2)).” (ECF No. 30 at 2.) Page 2 of 16 1 handcuffing inmates to a bench for extended periods, and disallowing inmates to have any 2 medical devices while in the general population of the jail. Defendants oppose Plaintiff’s motion to amend, arguing that amendment would be futile. 3 4 This is so, according to Defendants, because Plaintiff fails to allege any facts supporting his 5 theory that LVMPD, CCDC, or Clark County have these alleged customs or policies. Defendants 6 argue that Plaintiff’s assertions are conclusory and only based on his personal experiences “from 7 an isolated incident.” In Plaintiff’s reply, he first moves the Court to strike Defendants’ response “because the 8 9 Defendant that is [responding] against the Monell claims isn’t a party to them.”2 Plaintiff 10 continues by arguing that “this defendant has no interest in this Monell claim . . . .” It appears to 11 the Court that Plaintiff may be attempting to make a standing argument. However, the Court 12 denies Plaintiff’s motion to strike Defendants’ response (ECF No. 58) because he provides no 13 authority to support this argument. LR 7-2 (“The failure of a moving party to file points and 14 authorities in support of the motion constitutes a consent to the denial of the motion.”). In the 15 future, Plaintiff is advised that he must support his arguments with relevant legal authority (for 16 example, statutes or case law). Plaintiff continues in his reply by addressing Defendants’ argument that he has not offered 17 18 enough factual allegations in his proposed Second Amended Complaint to state Monell claims. 19 He starts, by way of background, explaining why his new allegations were not included in his 20 original complaint. He describes, in detail, the legal forms that inmates are given to fill out when 21 they are pursuing a claim, including the limited number of lines and pages inmates are allowed to 22 use for each section and what each section tells the inmate to write. Plaintiff writes that he 23 “believes that the forms and instructions are designed to streamline lawsuits and to prevent overly 24 writing claims . . . .” However, he argues that the forms are vague and fail to give some inmates 25 enough space to make out their claims. He argues further that some of the instructions, 26 27 28 2 Plaintiff appears to be confused about which defendants are presently in the case and which were previously dismissed. (See ECF No. 59 at 1.) On January 16, 2019, Clark County and LVMPD (among others) were dismissed from this case without prejudice. (See ECF No. 18.) Page 3 of 16 1 specifically those that tell the inmates “not to cite legal authority or to cite case law” in certain 2 sections can set up a “trap” for legally unsophisticated inmates. He notes that this happened to 3 him, stating that he only referenced “LVMPD sett[ling] a[nother] suit for this exact same civil 4 rights violation” without further detail in his proposed Second Amended Complaint because “the 5 instructions [on the form] said not to cite legal authority or to cite case law.” He also states that he 6 did not originally plead Monell claims because he did not have access to a law library at the time. 7 Plaintiff then addresses the substance of Defendants’ claim that he has not plead enough 8 facts in his proposed Second Amended Complaint to assert Monell claims. In response to 9 Defendants’ assertion that Plaintiff “does not identify the policy” at issue, Plaintiff argues, 10 “Plaintiff need not identify the precise policy or custom at issue, which would be difficult for an 11 inmate to do without detailed records of LVMPD policies, customs or practice[s] . . . .” In 12 response to Defendants’ assertion that Plaintiff’s allegations are only based on “his personal 13 experience from an isolated incident[,]” Plaintiff disagrees. 14 Regarding his allegation in Count II that “LVMPD must have a policy then for keeping 15 detainees in severe pain,” Plaintiff alleges that several officers were all “a party” to handcuffing 16 him behind his back while his shoulder was dislocated. 17 Regarding his allegation in Count III that “CCDC/Clark County/LVMPD has a custom, 18 policy and a known history” of handcuffing inmates to a specific bench for extended periods, 19 Plaintiff alleges that while he was handcuffed to the bench, at least four other people were all 20 handcuffed to the same bench. He also cites Cooley v. Marshal, a case in which an inmate at 21 CCDC sued (and won) over being handcuffed to a bench for an extended period. 2015 WL 22 4622589, at *3 (D. Nev. July 31, 2015), aff'd in part, rev’d in part and remanded sub 23 nom. Cooley v. Meads, 728 F. App’x 773 (9th Cir. 2018) (reversed only on district court’s refusal 24 to give punitive damages instruction to jury). Plaintiff notes that in Cooley, Judge Du specifically 25 noted that “the court is concerned about the constitutionality of the Detention Center’s practice of 26 restraining detainees to a bench as a solution to the shortage of isolation cells,” but did not 27 address the constitutionality of this policy as plaintiff “ha[d] not asserted a claim under Monell.” 28 Page 4 of 16 1 Id. at *3 n. 3. Plaintiff writes that he wants a Monell claim for this practice to be before the Court 2 now. 3 Turning to Plaintiff’s claim that LVMPD, CCDC, and Clark County have a policy of 4 disallowing inmates to have any medical devices in the general population, Plaintiff argues that 5 this claim is not based on solely on his own experience. He writes that it is also based on two 6 other facts: (1) in his twenty months at CCDC, he never saw another inmate with a medical 7 device and (2) Officer Cesar Esparza told him that CCDC does not allow medical devices outside 8 of the medical unit. 9 10 B. Legal Standard Generally, a party may amend its pleading once “as a matter of course” within twenty-one 11 days of serving it, or within twenty-one days after service of a responsive pleading or motion 12 under Rule 12(b), (e), or (f). Fed. R. Civ. P. 15(a)(1). Otherwise, “a party may amend its pleading 13 only with the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). 14 “The court should freely give leave when justice so requires.” Id. “The court considers five 15 factors [under Rule 15] in assessing the propriety of leave to amend—bad faith, undue delay, 16 prejudice to the opposing party, futility of amendment, and whether the plaintiff has previously 17 amended the complaint.” United States v. Corinthian Colls., 655 F.3d 984, 995 (9th Cir. 2011). 18 Here, Defendants challenge Plaintiff’s motion to amend on futility grounds only, arguing 19 that Plaintiff’s Monell claims are futile. A proposed amendment is futile if it could not withstand 20 a Rule 12(b)(6) motion for failure to state a claim. Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 21 214 (9th Cir. 1988). In order to establish a Monell claim (i.e. liability for governmental entities 22 under 42 U.S.C. § 1983), a plaintiff must prove “(1) that [the plaintiff] possessed a constitutional 23 right of which [s]he was deprived; (2) that the municipality had a policy; (3) that this policy 24 amounts to deliberate indifference to the plaintiff's constitutional right; and, (4) that the policy is 25 the moving force behind the constitutional violation.” Dougherty v. City of Covina, 654 F.3d 892, 26 900 (9th Cir. 2011). Here, Defendant argues that Plaintiff failed to plead factual allegations in 27 support of the second element – that the municipality had a policy. (ECF No. 47 at 3 (“Plaintiff 28 fails to state a cognizable Monell claim against LVMPD because his claim has no factual content Page 5 of 16 1 from which the Court may draw a reasonable inference that LVMPD is liable for an 2 unconstitutional policy.”).) 3 “Plaintiffs need not meet any heightened pleading standard to assert a § 1983 claim.” J.M. 4 by & Through Rodriguez v. Cty. of Stanislaus, 2018 WL 5879725, at *4 (E.D. Cal. Nov. 7, 2018). 5 And although the Court must presume all factual allegations in Plaintiff’s complaint are true, the 6 Court does not “have to accept every allegation in the complaint as true in considering its 7 sufficiency; rather, . . . [we] will examine whether conclusory allegations follow from the 8 description of facts as alleged by the plaintiff.” Holden v. Hagopian, 978 F.2d 1115, 1121 (9th 9 Cir. 1992). To the extent that conclusory allegations do not follow from the facts alleged, the 10 11 Court will reject these conclusions and find that the Plaintiff failed to state a claim. Id. C. Analysis 12 As explained in more detail below, the Court finds that Plaintiff failed to include sufficient 13 facts in his proposed Second Amended Complaint to make out Monell claims. However, based on 14 Plaintiff’s reply brief, the Court believes that Plaintiff may be able to plead sufficient facts to 15 make out Monell claims. Accordingly, the Court will deny Plaintiff’s Motion to Amend (ECF No. 16 44) without prejudice. 17 In Count II of Plaintiff’s proposed Second Amended Complaint, Plaintiff alleges that after 18 officers beat him, dislocated his shoulder, and broke his arm, several officers “kept the plaintiff 19 handcuffed behind his back.” (ECF No. 44-1 at 8.) He goes on to allege that “[j]unior officers did 20 the cuffing, supervising officers allowed it, and LVMPD must have a policy then for keeping 21 detainees in severe pain even though he is completely surrounded and he could be handcuffed in 22 front, or shackled.” (Id.) Although Plaintiff provides additional factual allegations about his 23 encounter with officers, he does not provide any additional factual allegations regarding any 24 alleged policy. The Court gathers from Plaintiff’s reply brief that he believes LVMPD has an 25 official policy or custom of keeping detainees in pain based on his experience with several 26 officers allegedly being complicit in this conduct toward him. (ECF No. 59 at 4-5.) However, 27 Plaintiff’s allegations in his reply brief cannot be “read into” his proposed complaint. And even if 28 they could, they do not provide sufficient factual allegations to support the conclusion that Page 6 of 16 1 LVMPD has a policy or custom of keeping detainees in severe pain. Accordingly, the Court will 2 deny Plaintiff’s motion to amend Count II. 3 In Count III of Plaintiff’s proposed Second Amended Complaint, Plaintiff alleges that 4 “CCDC/Clark County/LVMPD has a custom, policy, and a known history of using this bench 5 even though it is below the dignity of a man, and further LVMPD sett[l]ed suit for this exact same 6 civil rights violation . . . .” (ECF No. 44-1 at 9.) Plaintiff also alleges that “CCDC/LVMPD has a 7 policy of using this bench as a punishment//torture device, and has in the past settled litigation 8 dealing with this very same issue.” (Id. at 5.) Plaintiff does not include any additional facts in his 9 proposed complaint about this alleged policy or facts to support the conclusion that such a policy 10 exists. However, in his reply in support of his motion to amend, Plaintiff alleges that while he was 11 handcuffed to the bench, at least four other people were all handcuffed to the same bench. He also 12 cites Cooley v. Marshal, a case in which an inmate at CCDC sued (and won) over being 13 handcuffed to a bench for at least 15 hours. 2015 WL 4622589, at *3-4 (D. Nev. July 31, 14 2015), aff'd in part, rev’d in part and remanded sub nom. Cooley v. Meads, 728 F. App’x 773 15 (9th Cir. 2018) (reversed only on district court’s refusal to give punitive damages instruction to 16 jury). Plaintiff notes that in Cooley, Judge Du specifically noted that “the court is concerned about 17 the constitutionality of the Detention Center’s practice of restraining detainees to a bench as a 18 solution to the shortage of isolation cells,” but did not address the constitutionality of this policy 19 as plaintiff “ha[d] not asserted a claim under Monell.” Id. at *3 n. 3. Plaintiff writes that he is 20 attempting to advance a Monell claim over this same policy. (ECF No. 59 at 6.) 21 The Court finds that in Plaintiff’s proposed Second Amended Complaint, he has not 22 alleged sufficient facts to support the conclusion that Clark County or LVMPD has a policy of 23 handcuffing detainees to a bench for extended periods. Again, Plaintiff’s allegations in his reply 24 brief cannot be “read into” his proposed complaint, but based on these allegations, the Court does 25 not believe that all future attempts at amendment would be futile. Accordingly, the Court will 26 deny Plaintiff’s motion to amend Count III. 27 28 In Count V of Plaintiff’s proposed Second Amended Complaint, Plaintiff alleges that “CCDC/LVMPD and Clark [C]ounty have a policy of enforcing no medical devices in General Page 7 of 16 1 Population . . . .” (ECF No. 44-1 at 11.) Plaintiff provides no other factual allegations in his 2 proposed complaint to support his allegation that such a policy existed. However, in his reply 3 brief, he alleges new facts to support his contention that such a policy exists: (1) in his twenty 4 months at CCDC, he never saw another inmate with a medical device and (2) Officer Cesar 5 Esparza told him that CCDC does not allow medical devices outside of the medical unit. Based 6 on the foregoing, the Court finds that in Plaintiff’s proposed Second Amended Complaint, he has 7 not alleged sufficient facts to support the conclusion that such a policy existed. Plaintiff’s 8 allegations in his reply brief cannot be “read into” his proposed complaint, but based on these 9 allegations, the Court does not believe that all future attempts at amendment would necessarily be 10 11 futile. Accordingly, the Court will deny Plaintiff’s motion to amend Count V. If Plaintiff chooses to attempt to amend its complaint again, it must file another motion to 12 amend and attached a proposed Second Amended Complaint. Plaintiff is advised that the 13 proposed Second Amended Complaint must contain all of Plaintiff’s allegations and claims; the 14 Court cannot refer to prior complaints, motions, briefs, or any other filings to make Plaintiff’s 15 proposed Second Amended Complaint complete. In other words, the proposed Second Amended 16 Complaint must be complete in and of itself. III. Plaintiff’s Motions to Name New Defendants and Serve Them (ECF Nos. 67, 75, 76, and 82) 17 18 19 20 Plaintiff filed a motion to serve unserved defendants on April 30, 2019. (ECF No. 67.) Defendants did not respond to this motion. The Court previously directed the Clerk of Court to issue summons to Dr. Duran and to 21 deliver the same to the U.S. Marshal Service (“USM”) for service. (See ECF Nos. 18, 19.) 22 Plaintiff properly submitted the USM-285 forms for defendant Dr. Duran; however, the USM was 23 unable to complete service for this defendant. (See ECF No. 22.) In ECF No. 67, Plaintiff 24 provides what he believes are valid addresses for Dr. Duran and renews his request that USM 25 serve Dr. Duran. 26 27 In ECF Nos. 75 and 76, Plaintiff provides the names of the five sergeants who worked in the booking area of CCDC while Plaintiff was allegedly handcuffed to a bench for approximately 28 Page 8 of 16 1 24 hours. He asks the Court to substitute John Does 1-3 with the names of these five sergeants 2 (Sgt. Robert Burleson, P#8115; Sgt. Neldon Barrowes P#5906; Sgt. Linda Buchanan P#9904; 3 Sgt. Kevin Kegley P#8836; and Sgt. Jeanette Dillon P#8351) and have the USM serve them. The Court will grant these three motions (ECF Nos. 67, 75, and 76) as unopposed. See LR 4 5 7-2(d) (“The failure of an opposing party to file points and authorities in response to any motion, 6 except a motion under Fed. R. Civ. P. 56 or a motion for attorney’s fees, constitutes a consent to 7 the granting of the motion.”).3 The Court will order the Clerk of Court to send Plaintiff blank 8 summonses and USM-285 forms, along with a copy of this order. Plaintiff must fill out these 9 forms and file them with the Court by January 6, 2020. Plaintiff is instructed that, for each 10 sergeant he wishes to serve, he must include the individual’s “P#,” first name, and last name on 11 the summonses and USM-285 form. (See ECF No. 38 at 2 (indicating certain individuals could 12 not be served without “P#s” or first names).) Upon receipt of the proposed summonses and 13 completed USM-285 forms from Plaintiff, the Clerk of Court must issue the summonses and 14 deliver the summonses, the USM-285 forms, a copy of the First Amended Complaint, and a copy 15 of this order to the U.S. Marshal for service. Finally, Plaintiff filed a similar motion to substitute new parties on July 26, 2019. (ECF 16 17 No. 82.) Defendants responded on August 8, 2019. (ECF No. 85.) Plaintiff did not reply. In Plaintiff’s motion, he seeks to substitute two Doe defendants for defendants he has now 18 19 identified. Specifically, he previously insufficiently identified “Nurse Pat” as a defendant, but 20 now understands Nurse Pat’s full name to be Patricia Oliver. Similarly, he previously 21 insufficiently identified “Nurse G” and now understands Nurse G’s full name to be Dionna Greer. 22 Plaintiff requests that these defendants be substituted for Doe defendants and that the USM serve 23 them. Plaintiff also moves the Court to order NaphCare to identify everyone who signed any 24 medical document at CCDC for Plaintiff. 25 26 27 28 3 The Court also previously indicated to Plaintiff that he may attempt service again on Dr. Duran and that he could move the Court to substitute the true names of the Doe defendants if the identities of these individuals came to light during discovery. (ECF No. 38 at 4-5.) This appears to have occurred. Page 9 of 16 Defendants respond that they have no objection to Plaintiff substituting Doe defendants 1 2 for these two individuals, but state that these individuals no longer work at NaphCare and 3 Defendants cannot accept service for them. Defendant also opposes Plaintiff’s request to force 4 NaphCare to identify all persons who signed any medical document for Plaintiff while he was at 5 CCDC. Defendants represent that Plaintiff has not served them with any discovery requesting 6 these identities. 7 Regarding Plaintiff’s request to substitute Patricia Oliver and Dionna Greer for Doe 8 defendants, Plaintiff has not indicated that he has a valid address at which either individual can be 9 served. Defendants indicate that neither continues to work at NaphCare and that Defendants 10 cannot accept service for either. Accordingly, the Court will deny Plaintiff’s request to substitute 11 these individuals for Doe defendants and have the USM serve them without prejudice. If Plaintiff 12 discovers valid addresses for either or both individuals in the future, he may move the court again 13 to substitute them for Doe defendants and have the USM serve them. Regarding Plaintiff’s request that Defendants identify every person who signed a medical 14 15 document at CCDC for Plaintiff, there is no evidence before the Court that Plaintiff properly 16 requested this information through discovery. It also appears that Plaintiff did not meet and confer 17 with Defendants regarding his request for this information. As such, the Court will deny 18 Plaintiff’s request and, therefore, ECF No. 82 in its entirety. Plaintiff is advised to review the 19 Federal Rules of Civil Procedure and Local Rules regarding the proper ways in which parties can 20 obtain discovery, as well as Local Rule IA 1-3(f)(1) regarding meet and confers. 21 22 IV. Plaintiff’s Motion for Appointment of Counsel (ECF No. 53) Plaintiff filed a motion for appointment of counsel on April 8, 2019. (ECF No. 53.) 23 Certain defendants responded on April 11, 2019 (ECF No. 56), while other defendants moved to 24 join this response the same day (ECF No. 57). Plaintiff replied on April 25, 2019. (ECF No. 65.) 25 Plaintiff then filed a notice reaffirming his request for appointment of counsel. (ECF No. 100.) 26 Certain defendants treated this filing as a third motion for appointment of counsel and responded 27 on October 14, 2019 (ECF No. 103), while other defendants joined this filing on October 21, 28 2019. (ECF No. 105.) Plaintiff replied on October 24, 2019. (ECF No. 107.) Page 10 of 16 1 Plaintiff requests a court-appointed attorney for several reasons. He asserts that he cannot 2 afford counsel; the issues in this case are complex; defendants are far away, which makes 3 discovery and communication difficult; there are “medical components” requiring “technical 4 knowledge” that Plaintiff does not have; there are many defendants in the case and lots of 5 documents plaintiff is responsible for providing; Plaintiff has limited knowledge of the law; 6 Plaintiff has been unsuccessful in retaining his own counsel; the case is ripe for settlement; 7 Plaintiff has been unsuccessful in obtaining some discovery from defendants; and the case 8 involves a “serious medical injury.” 9 Defendants oppose Plaintiff’s motion and argue that he has not presented any 10 extraordinary circumstances that would make appointment of counsel appropriate. Further, 11 Defendants note that this Court had already denied Plaintiff’s previous motion for appointment of 12 counsel and that the circumstances have not changed since this Court entered that order. 13 In reply, Plaintiff argues that there have been some changes since the Court first denied 14 his motion for appointment of counsel. Importantly, Plaintiff notes that he is having surgery on 15 his right arm shortly (related to the injuries that caused this litigation), is right-handed, and 16 afterwards, he will be unable to write or type to continue with this litigation for several months. 17 This is so, in part, because he will need to wear an arm immobilizer for several months after 18 surgery. 19 Civil litigants do not have a Sixth Amendment right to appointed counsel. Storseth v. 20 Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). However, in very limited circumstances, federal 21 courts are empowered to request an attorney to represent an indigent civil litigant. For example, 22 courts have discretion, under 28 U.S.C. § 1915(e)(1), to “request” that an attorney represent 23 indigent civil litigants upon a showing of “exceptional circumstances.” Agyeman v. Corrections 24 Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). The circumstances in which a court will make 25 such a request, however, are exceedingly rare and require a finding of extraordinary 26 circumstances. United States v. 30.64 Acres of Land, 795 F.2d 796, 799-800 (9th Cir. 1986); 27 Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). 28 Page 11 of 16 1 To determine whether the “exceptional circumstances” necessary for appointment of 2 counsel are present, the Court evaluates (1) the likelihood of plaintiff’s success on the merits and 3 (2) the plaintiff’s ability to articulate his claim pro se “in light of the complexity of the legal 4 issues involved.” Agyeman, 390 F.3d at 1103 (quoting Wilborn, 789 F.2d at 1331). Neither of 5 these factors is dispositive and both must be viewed together. Wilborn, 789 F.2d at 1331. It is 6 within the Court’s discretion whether to request that an attorney represent an indigent civil 7 litigant under 28 U.S.C. § 1915(e)(1). Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). 8 The Court has carefully reviewed Plaintiff’s allegations and request for appointment of 9 counsel. Regarding Plaintiff’s likelihood of success on the merits, the Court notes that Plaintiff 10 has asserted five plausible claims. He has also attached some medical documentation to filings 11 that provides some support for these claims. Accordingly, he has some likelihood of success on 12 the merits. Regarding Plaintiff’s ability to articulate his claims, he alleges that he will undergo 13 surgery soon on his right arm, that he is right-handed, and that after surgery, he will have to wear 14 an arm immobilizer for several months. As a result, Plaintiff will not be able to write or type to 15 continue this litigation for months. Considering these facts, the Court finds that this case presents 16 a unique set of circumstances where the very allegations at the heart of Plaintiff’s complaint, his 17 arm condition, will prevent him from pursuing his case. Therefore, the Court, in its discretion, 18 finds that Plaintiff demonstrates the exceptional circumstances required for the appointment of an 19 attorney and will grant his motion (ECF No. 53). 20 The Court will refer this case to the Court’s Pro Bono Pilot Program to attempt to find an 21 attorney to accept Plaintiff’s case. Plaintiff should be aware that the federal court has no authority 22 to require attorneys to represent indigent litigants in civil cases under 28 U.S.C. § 1915(d). 23 Mallard v. U.S. Dist. Court for Southern Dist. of Iowa, 490 U.S. 296, 298 (1989). Rather, when a 24 court “appoints” an attorney, it can only do so if the attorney voluntarily accepts the assignment. 25 Id. If counsel is found for Plaintiff, the Court will issue an order appointing counsel and counsel 26 will contact Plaintiff. Plaintiff is reminded that until counsel is provided, he is still responsible for 27 complying with all deadlines in his case. 28 Page 12 of 16 1 V. Plaintiff’s Motion to File Discovery Exhibits or, Alternatively, Motion for Settlement Conference (ECF No. 69) 2 Plaintiff filed a motion seeking to file discovery exhibits on the record or, alternatively, 3 seeking a settlement conference on May 9, 2019. (ECF No. 69.) Defendants responded on May 4 23, 2019. (ECF No. 71.) Plaintiff did not file a reply. 5 First, the Court denies Plaintiff’s request to file discovery exhibits on the record. Local 6 Rule 26-8 provides that written discovery “must not be filed with the court” unless the Court 7 orders otherwise. Plaintiff has not provided any reason why it would be necessary or appropriate 8 to file discovery in the record in this case. Accordingly, the Court denies this request of 9 Plaintiff’s. 10 Second, the Court encourages parties to engage in settlement discussions and to attempt to 11 settle cases early, if possible. Here, however, Defendants do not believe that a settlement 12 conference would be productive or an efficient use of the Court’s time at this stage in discovery. 13 The Court will not force Defendants to engage in a settlement conference at this juncture and will 14 deny Plaintiff’s request for a settlement conference. Accordingly, ECF No. 69 will be denied in 15 its entirety. 16 In the future, however, the parties may file a joint stipulation requesting a settlement 17 conference if they agree that Magistrate Judge Weksler’s participation in discussions would be 18 helpful. 19 20 VI. Defendants’ Motion to Extend Time (ECF Nos. 70 and 91) Defendants filed their first request to extend discovery by 90 days on May 21, 2019. (ECF 21 No. 70.) Other defendants joined this motion on May 24, 2019 (ECF No. 72), and Plaintiff 22 responded on June 3, 2019. (ECF No. 73.) Defendants replied on June 6, 2019. (ECF No. 74.) 23 Plaintiff subsequently filed a motion to deny Defendants’ motion to extend time on August 23, 24 2019. (ECF No. 91.) Defendants did not respond to this motion. 25 The Court carefully reviewed all of the parties’ briefs. While Plaintiff opposes 26 Defendants’ proposed discovery extension, as Defendants point out, Plaintiff also concedes that 27 he has not completed discovery yet. Defendants argue that they need additional time, too. Further, 28 Page 13 of 16 1 given some of the decisions in this order and the fact that some of the extend-discovery deadlines 2 that Defendants proposed have already lapsed, the Court believes that both parties will need 3 additional time to conduct and complete discovery. Accordingly, the Court will grant Defendants’ 4 motion for an extension (ECF No. 70) starting from the date of this order.4 The new dates are as 5 follows: Discovery Deadline 5/30/2020; Motions to Amend Pleadings and Add Parties 3/1/2020; 6 Expert Disclosures 3/31/2020; Rebuttal Expert Disclosures 4/30/2020; Dispositive Motions 7 6/29/2020; Pretrial Order 7/29/2020; and Interim Status Reports 3/31/2020. 8 9 10 For the same reasons that the Court grants Defendants’ motion for an extension of time, it denies Plaintiff’s motion to deny Defendants’ motion (ECF No. 91). VII. Plaintiff’s Motion Seeking Status of Pending Motions (ECF No. 94) 11 Plaintiff filed a motion on September 9, 2019 seeking to know the status of the motions 12 pending before this Court. (ECF No. 94.) Defendants did not respond to this motion. In light of 13 this order, which addresses all of the motions pending before the undersigned Magistrate Judge, 14 Plaintiff’s Motion Seeking Status of Pending Motions (ECF No. 94) is denied as moot. 15 16 17 18 19 20 21 22 VIII. CONCLUSION IT IS THEREFORE ORDERED that Plaintiff’s Motion to Amend First Amended Complaint (ECF No. 44) is DENIED without prejudice. IT IS FURTHER ORDERED that Plaintiff’s Motion to Strike Response to Motion to Amend (ECF No. 58) is DENIED. IT IS FURTHER ORDERED that Plaintiff’s Motion for Appointment of Counsel (ECF No. 53) is GRANTED. IT IS FURTHER ORDERED that this case is referred to the Pilot Pro Bono Program 23 adopted in General Order 2017-07 for the purpose of identifying an attorney willing to be 24 appointed as a pro bono attorney for Plaintiff. Plaintiff is reminded that he must comply with all 25 26 27 28 4 At the time that Defendants filed their motion, they sought a 90-day extension of all discovery dates and had two months remaining before the discovery cut-off date (i.e. they indicated they needed five months to complete discovery). Accordingly, the court is granting the parties a little more than five months to complete discovery. Page 14 of 16 1 deadlines currently set in his case and there is no guarantee that counsel will be appointed. If 2 counsel is found, an order appointing counsel will be issued by the Court and Plaintiff will be 3 contacted by counsel. 4 5 6 7 IT IS FURTHER ORDERED that the Clerk of Court must forward this order to the Pro Bono Liaison. IT IS FURTHER ORDERED that Plaintiff’s Motion for Service on Unserved Defendants (ECF No. 67) is GRANTED. 8 IT IS FURTHER ORDERED that Plaintiff’s Motion to Substitute John Doe #1 for True 9 Identities; and Request an Order to Serve Newly Named Defendants (ECF No. 75) is GRANTED. 10 IT IS FURTHER ORDERED that Plaintiff’s Motion to Substitute John Doe #1 for True 11 Identities; and Request an Order to Serve Newly Named Defendants (ECF No. 76) is GRANTED. 12 13 14 15 16 17 18 IT IS FURTHER ORDERED that Plaintiff’s Motion to Substitute Parties (ECF No. 82) is DENIED without prejudice. IT IS FURTHER ORDERED that the Clerk of Court must send Plaintiff six blank summonses and six blank USM-285 forms, along with a copy of this order. IT IS FURTHER ORDERED that Plaintiff must fill out these forms and file them with the Court by January 3, 2020. IT IS FURTHER ORDERED that upon receipt of the proposed summonses and 19 completed USM-285 forms from Plaintiff, the Clerk of Court must issue the summonses and 20 deliver the summonses, the USM-285 forms, a copy of the First Amended Complaint, and a copy 21 of this order to the U.S. Marshal for service. 22 23 24 IT IS FURTHER ORDERED that Plaintiff’s Motion to File Discovery Exhibits, or Alternatively, Motion for Settlement Conference (ECF No. 69) is DENIED. IT IS FURTHER ORDERED that Defendants’ motion for an extension (ECF No. 70) is 25 GRANTED. The discovery deadlines are as follows: Discovery Deadline 5/30/2020; Motions to 26 Amend Pleadings and Add Parties 3/1/2020; Expert Disclosures 3/31/2020; Rebuttal Expert 27 Disclosures 4/30/2020; Dispositive Motions 6/29/2020; Pretrial Order 7/29/2020; and Interim 28 Status Reports 3/31/2020. Page 15 of 16 1 2 3 4 5 IT IS FURTHER ORDERED that Plaintiff’s Motion to Deny Motion to Extend Time for Discovery (ECF No. 91) is DENIED. IT IS FURTHER ORDERED that Plaintiff’s Motion Seeking Status of Pending Motions (ECF No. 94) is DENIED. DATED: December 2, 2019 6 7 8 BRENDA WEKSLER UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 16 of 16
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