(PC) Cooper v. Heatley, et al, No. 2:2012cv00602 - Document 60 (E.D. Cal. 2015)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 1/06/15 ORDERING defendants' motion for an order compelling plaintiff to participate in a video deposition is granted. Defendants shall re-notice plaintiff' s deposition so that it takes place no later than 02/28/15. Defendant' motion for discovery sanctions 43 is otherwise denied. The court's 08/21/13 discovery and scheduling order, as modified by subsequent order, is hereby amended as fol lows: The 04/25/14 deadline for discovery and to file any motions to compel discovery is vacated, and reset for 03/15/15, solely for the purposes of allowing defendants to take plaintiff's deposition. Neither party is granted leave to propound additional discovery requests. The 06/17/14 deadline to file pretrial motions (except motions to compel) is vacated and reset for 04/15/15. Defendants' motion to compel discovery responses 42 is denied. Plaintiff's motion for monetary sanctions 46 is denied. Plaintiff's motion for an extension of time in which to conduct discovery 52 is denied. Plaintiff's motion to compel discovery responses 53 is denied. Plaintiff's motion for appointment of counsel 54 i s denied. Within 14 days of filing of this order, counsel for defendants shall file a status report informing the court whether plaintiff currently has access to his legal materials, and if not, what arrangements have been made to allow plaintiff ad equate access so that he can prepare for his deposition and file an opposition to any forthcoming motion for summary judgment. Also, RECOMMENDING that defendants' motion for summary judgment 50 be denied without prejudice to its re-filing in compliance with the new 04/15/15 deadline for the filing of pretrial motions. Motion for Summary Judgment 50 referred to Judge Kimberly J. Mueller. Objections due within 14 days.(Plummer, M)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GOLDYN COOPER, 12 Plaintiff, 13 14 No. 2:12-cv-00602 KJM DAD P v. ORDER AND FINDINGS & RECOMMENDATIONS SCOTT HEATLEY, et al., 15 Defendants. 16 Plaintiff Goldyn Cooper is a state prisoner proceeding pro se and in forma pauperis in this 17 18 civil rights action filed pursuant to 42 U.S.C. § 1983. In his complaint plaintiff contends that 19 while he was incarcerated at Mule State Creek Prison defendants Dr. Scott Heatley, M.D. and 20 Terry Weinholdt were deliberately indifferent to his medical needs, in violation of the Eighth 21 Amendment’s prohibition against cruel and unusual punishment. 22 Now pending before the court are a motion for summary judgment filed by defendants, a 23 motion for appointment of counsel filed by plaintiff, and various discovery-related motions filed 24 by both parties. 25 //// 26 //// 27 //// 28 //// 1 1 I. Background 2 A. Factual Background 3 Plaintiff alleges as follows in his complaint. (ECF No. 1.) On March 8, 2010, while he 4 was an inmate at Mule Creek State Prison,1 plaintiff submitted a Health Care Services Request on 5 CDCR Form 7362, in which he wrote, “My knee is extremely swollen and almost gi[v]es out and 6 or buckles every few steps. I can hardly walk at all.” (ECF No. 1 at 2.) 7 Dr. H. Walter Pepper, M.D., formerly a defendant in this action, made the following 8 diagnosis of plaintiff’s condition based on x-rays taken around this time: “The articular margins 9 are normal. The patellofemoral joint is unremarkable.” (Id.at 3.) Plaintiff received a leg brace, 10 but received no further treatment. (Id.at 2-3) 11 Plaintiff alleges that he submitted medical requests again seeking treatment for his left 12 knee on August 7, 2010, August 27, 2010, and December 13, 2010, all to no avail. (Id. at 2-3.) 13 He alleges that he was examined by Dr. W. Hashimoto, M.D., a doctor at Mule Creek State 14 Prison, on November 18, 2010, December 24, 2010, February 2, 2011, and April 7, 2011, and that 15 Dr. Hashimoto repeatedly recommended that plaintiff receive an MRI. (Id.) Moreover, both 16 Dr. Hashimoto and O. Akintola, a physician’s assistant, diagnosed an ACL tear on the basis of 17 their examinations of plaintiff. (Id.) Nonetheless, requests for plaintiff to receive an MRI were 18 repeatedly denied by the prison’s Medical Authorization Review Committee (“MARC”), on 19 which defendants Terri Weinholdt and Dr. Scott Heatley, M.D. sat. (Id.) 20 On August 2011, plaintiff was seen by an orthopedic surgeon who ordered an MRI, which 21 plaintiff thereafter received. (Id.) This same surgeon later operated on plaintiff’s left knee. (Id. 22 at 5.) The orthopedic surgeon informed plaintiff that he would require complete reconstructive 23 surgery on his left knee in a few years. (Id.) He also told plaintiff that this follow-up surgery 24 would have been unnecessary if his knee had been timely operated on in March 2010, shortly 25 after he injured it. (Id.) 26 ///// 27 28 1 Plaintiff was subsequently transferred to the Richard J. Donovan Correctional Facility in San Diego, California. (See ECF No. 38.) 2 1 B. Procedural Background 2 On March 8, 2012, this action commenced with the filing of plaintiff’s complaint. (ECF 3 No. 1.) On December 20, 2012, the court screened the complaint, and deemed service 4 appropriate on defendants Terri Weinholdt, Dr. Scott Heatley, M.D., and Dr. H. Walter Pepper, 5 M.D. (ECF No. 4.) On July 2, 2013, defendants Weinholdt and Dr. Heatley filed a joint answer. 6 (ECF No. 18.) On August 15, 2013, defendant Dr. Pepper filed a motion to dismiss. (ECF 7 No. 22.) On October 17, 2013, plaintiff filed a statement of non-opposition to the motion to 8 dismiss. (ECF No. 31.) On January 10, 2014, defendant Dr. Pepper was dismissed from the 9 action.2 (ECF No. 33.) 10 On August 27, 2013, the court amended its previously-issued discovery and scheduling 11 order (ECF No. 23) in order to modify the following dates: the deadline to conclude discovery 12 and bring any discovery-related motions was reset to April 25, 2014, and the deadline to file 13 pretrial motions was reset to June 17, 2014. (ECF No. 27.) 14 On March 5, 2014, defendants Weinholdt and Dr. Heatley filed a joint motion to dismiss 15 plaintiff’s complaint. (ECF No. 37.) The basis for the motion was plaintiff’s alleged failure to 16 exhaust his administrative remedies prior to filing suit as required. (Id.) After considering 17 defendants’ filing, as well as plaintiff’s opposition (ECF No. 40) and defendants’ reply (ECF 18 No. 41), the court denied the motion to dismiss without prejudice, on the grounds that, under the 19 decision in Albino v Baca, 747 F.3d 1162 (9th Cir. 2014), defendants may no longer raise the 20 issue of administrative exhaustion via an unenumerated Rule 12(b) motion. (ECF No. 48.) Per 21 the decision in Albino, if plaintiff’s failure to exhaust is clear on the face of the complaint, 22 defendants may bring a motion to dismiss under Rule 12(b)(6); otherwise, the issue may only be 23 properly raised through a motion for summary judgment under Rule 56. (Id.at 1.) By order dated 24 May 21, 2014, defendants were given thirty days to bring a summary judgment motion raising the 25 issue. (Id. at 2.) They did not do so. 26 27 28 2 For this reason, the term “defendants,” when used hereinafter and not otherwise qualified, should be taken to refer collectively to Terri Weinholdt and Dr. Heatley, the two remaining defendants in the action. 3 1 Presently pending before the court are the following motions: 2 3 Defendants Heatley and Weinholdt’s motion to compel responses to special interrogatories, set one, filed on April 16, 2014. (ECF No. 42.) 4 5 Defendants’ motion for imposition of discovery sanctions, filed on April 24, 2014. (ECF No. 43.) 6 7 Plaintiff’s motion for imposition of sanctions based on defense counsel’s alleged perjury, filed on May 15, 2014. (ECF No. 46.) 8 Defendants’ motion for summary judgment, filed on June 17, 2014. (ECF No. 50.) 9 Plaintiff’s motion for a 90-day extension of time to conclude discovery, filed August 10 4, 2014. (ECF No. 52.) 11 12 Plaintiff’s motion to compel production of documents, filed August 5, 2014. (ECF No. 53.) 13 14 Plaintiff’s renewed motion for appointment of counsel, filed August 5, 2014.3 (ECF No. 54.) 15 Each of these motions is dealt with in turn below. 16 II. Analysis 17 A. Defendants’ motion for discovery sanctions 18 Of primary concern to the court is defendants’ motion for discovery sanctions, filed on 19 April 24, 2014. (ECF No. 43.) The basis for this motion is plaintiff’s alleged unwillingness to 20 allow his deposition to be taken. Defendants seek terminating sanctions, or in the alternative, an 21 order (i) extending the discovery deadline, and (ii) compelling plaintiff to submit to a deposition 22 at a facility with videoconferencing capabilities. (ECF No. 43-1 at 4.) Defendants also seek 23 imposition of monetary sanctions against plaintiff in the amount of $4944.46 to compensate for 24 the costs attendant on the failed deposition, as well as for defendants’ attorney fees. 25 26 27 28 Federal Rule of Civil Procedure 37(d) provides that the court may order sanctions if a party fails, after being served with proper notice, to appear for his or her deposition. Among the 3 On February 12, 2014, the court denied a previous motion filed by plaintiff seeking the appointment of counsel. (ECF No. 35.) 4 1 potential sanctions is dismissal of the action, in whole or in part. Fed. R. Civ. P. 37(b)(2)(A)(v). 2 The court may also order the party failing to act to pay the reasonable expenses, including 3 attorney’s fees, caused by the failure, unless the failure was substantially justified or other 4 circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(d)(3). 5 In a declaration in support of their sanctions motion, defendants’ counsel Kenny Nguyen 6 states that, on April 1, 2014, he served a notice of deposition on plaintiff, which provided that 7 Deputy Attorney General Nguyen would take plaintiff’s deposition in person at Richard J. 8 Donovan Correctional Facility in San Diego, California, on April 22, 2014 at 10:00 a.m. (ECF 9 No. 43-2 at 1-2.) According to Deputy Attorney General Nguyen, he did not receive any 10 objections or correspondence from plaintiff regarding the deposition notice. (Id. at 2.) Deputy 11 Attorney General Nguyen then avers: 12 13 14 15 16 17 18 19 20 21 22 23 Upon my arrival at [the prison] to begin the deposition, [p]laintiff was brought into the deposition room. The deposition was set to take place shortly after 10:00 AM due to the court reporter’s late arrival. Plaintiff immediately became hostile upon seeing me and the court reporter. He began to pace back and forth in the room, at first demanding to know why he was brought into the room. I introduced myself to him as Deputy Attorney General Kenny Nguyen, that [sic] I represent the defendants in the lawsuit he filed in federal court alleging deliberate indifference to his medical needs. I then told him that I was here to take his deposition, and that a notice was served on him on April 1st. At this point, [p]laintiff refused to sit down and continue pacing back and forth in the small room in a threatening manner. Both I and the court reporter feared for our safety. Plaintiff looked at me and asked me if I thought he was stupid and continued with confrontational questions such as this. He then stated that he knew exactly what I was trying to do. And at that point he appeared to tense up as if he was going to assault me and stated that he will remember exactly what I look like. Fearing for my safety and the safety of the court reporter, I then asked him whether he was refusing to proceed with the deposition and when he continued to escalate his hostility toward me, I asked the corrections officer to remove him from the room. 24 (Id. at 2.) Deputy Attorney General Nguyen concludes by stating that he would feel unsafe if he 25 was again to be in plaintiff’s presence while taking his deposition, that the Richard J. Donovan 26 facility lacks videoconferencing capabilities, and that a deposition by telephone would be 27 inadequate, as “[Deputy Attorney General Nguyen] cannot observe [plaintiff’s] demeanor or 28 nonverbal responses.” (Id. at 3.) 5 1 2 Plaintiff has filed an opposition to the motion. (ECF No. 45.) He claims therein that he is a psychiatric patient in the Enhanced Outpatient Program (“EOP”).4 (Id. at 1.) He contends that 3 when a California Department of Corrections Classification Committee conducts a hearing with the plaintiff, by state and federal law, the Psychiatrist and Psychologist MUST be present with The Warden who controls the custody and care of the plaintiff; which Attorney Nguyen knew this was a Federal and State Court mandated law, yet he chose not to comply with these two laws and never contacted [the Warden] to have the Psychiatrist and Psychologist present during the deposition interrogations of the mentally ill. 4 5 6 7 8 (ECF No. 45 at 3.) This argument is inapt. A Classification Committee hearing addresses 9 “determination[s] affecting an inmate’s placement within an institution/facility, transfer between 10 facilities, program participation, work group, or custody designation . . . .” Entering a California 11 State Prison – What to Expect, Office of the Ombudsman, California Department of Corrections 12 and Rehabilitation, http://cdcr.ca.gov/Ombuds/Entering_a_Prison_FAQs.html. By contrast, a 13 deposition is a discovery procedure authorized by the Federal Rules of Civil Procedure. The 14 undersigned is unaware of any court orders, laws, or regulations, either at the federal or state 15 level, which requires that mental health personnel be present when EOP patients are deposed. 16 While Federal Rule of Civil Procedure 26(c)(E) allows a party to move for a protective order, on 17 a showing of good cause, “designating the persons who may be present while the discovery is 18 conducted,” the undersigned would be reluctant to issue such an order absent a declaration from a 19 treating mental health professional stating that he or she needed to be present with plaintiff during 20 his deposition. It is plaintiff who initiated this lawsuit; it is therefore reasonable that he should 21 anticipate being subject to a deposition regarding the matters at issue. This conclusion is 22 reinforced by the fact that plaintiff appears to have competently represented himself in civil 23 proceedings that culminated in a 2011 federal jury trial in the case of Cooper v. Dion, No. 2:08- 24 4 25 26 27 28 The “Enhanced Outpatient Program (EOP) provides care to mentally disordered inmate-patients who would benefit from the structure of a therapeutic environment that is less restrictive than inpatient settings. This may include response to crisis symptoms which require extensive treatment, but can be managed as outpatient therapy with several psychotherapy sessions or medication adjustment with follow-up visits.” Mental Health Program Guide 8, California Department of California Department of Corrections and Rehabilitation, http://www.cdcr.ca.gov/dchcs/docs/mental%20health%20program%20guide.pdf. 6 1 cv-01567-JAM-JFM; it is therefore reasonable to infer that he is conversant with federal civil 2 procedure. Plaintiff’s more compelling argument is that had he threatened defendants’ counsel, 3 4 Deputy Attorney General Nguyen, at the scheduled deposition, he would have been subjected to 5 disciplinary action. (ECF No. 45 at 9.) The court finds it notable that, according to Deputy 6 Attorney General Nguyen, a court reporter was present at the failed deposition, but defendants 7 nonetheless did not attach to their sanctions motion a transcript of what proceedings did occur. 8 Accordingly, the court is unable to verify whose account of what happened is reliable. For this 9 reason, defendants’ request for terminating sanctions will be denied. 10 The sensible course of action at this point appears to be to require plaintiff to submit to a 11 video deposition.5 After taking this deposition, defendants can then bring another motion for 12 summary judgment if they so choose. Plaintiff is cautioned that if he fails to submit to the video 13 deposition, it is likely that terminating sanctions will issue, resulting in the dismissal of this case 14 with prejudice. As for defendants’ request for monetary sanctions, it will be denied at this time. 15 16 However, if plaintiff fails to submit to a video deposition or to cooperate in the deposition 17 process, defendants may renew their request and include the costs of their second failed attempt at 18 taking plaintiff’s deposition. Plaintiff is again cautioned that if he fails to submit to the 19 deposition, he may then be subject to sanctions, both monetary and terminating. 20 B. Plaintiff’s motion for sanctions, filed on May 15, 2014 21 On May 15, 2014, plaintiff filed a motion seeking the award of monetary sanctions in the 22 amount of $5,000.00 from defendants’ counsel, Deputy Attorney General Nguyen. (ECF No. 46.) 23 Plaintiff therein claims that Deputy Attorney General Nguyen perjured himself by failing to 24 provide receipts for all of the expenses claimed in his motion for imposition of discovery 25 5 26 27 28 This conclusion is bolstered by Deputy Attorney General Nguyen’s averment, in his declaration in support of the motion for terminating sanctions, that he would be unable to prepare a motion for summary judgment without plaintiff’s deposition testimony. (See ECF No. 43-2 at 4.) While defendants eventually did file a summary judgment motion (ECF No. 50), the court is unwilling to consider and rule on that potentially dispositive motion absent a more fully-developed record. 7 1 sanctions against plaintiff, discussed above. Plaintiff brings his motion pursuant to Federal Rule 2 of Civil Procedure 11. 3 Deputy Attorney General Nguyen has now submitted to the court receipts for all of the 4 claimed expenses, attached as exhibits to a declaration filed in support of his opposition to 5 plaintiff’s motion. (See ECF No. 49-1.) The court is satisfied by this filing and, accordingly, will 6 deny plaintiff’s motion for monetary sanctions. C. Plaintiff’s motions (i) for an extension of time to conduct discovery and (ii) to compel production of documents 7 8 9 On August 4, 2014, plaintiff filed a motion seeking a 90-day extension of time in which to 10 conduct discovery in this action. (ECF No. 52.) On August 5, 2014, plaintiff filed a motion to 11 compel defendants to respond to his request for production of documents. (ECF No. 53.) 12 Defendants have not filed oppositions to either motion.6 In a section entitled “[S]tatement of [F]acts” in his motion to compel, plaintiff claims that 13 14 he filed a request for production of documents in “5-circa 2014.” (ECF No. 53 at 3.) The court 15 takes plaintiff to mean that he served these discovery requests in May 2014. According to 16 plaintiff, defendants did not respond to his discovery requests. However, “plaintiff was unable to 17 file a letter or motion asking why, because Prisoner Frederick W. Smith [an inmate who was 18 assisting plaintiff] left the prison May 19, [20]14 and did not return until May 29, 2014 and that 19 was because of his own depression and was under suicide watch.” (Id.) 20 Plaintiff justifies his motion for a 90-day extension of time to conduct discovery in this 21 case on the grounds that on July 3, 2014, he was placed in administrative segregation at R.J. 22 Donovan State Prison. (ECF No. 52 at 1.) Plaintiff states that, as a result of his placement in 23 administrative segregation, his legal documents were taken from him and have yet to be returned. 24 (Id.) On this basis, he seeks an extension of time to propound interrogatories and requests for 25 admission to defendants. (Id.) 26 27 28 6 Defense counsel is reminded that failure to timely oppose such a motion may be deemed a waiver of opposition to the motion and may result in the imposition of sanctions. See Local Rule 230(l). 8 1 Plaintiff’s motions in this regard do not appear to be meritorious. Plaintiff appears to have 2 failed to comply with most, if not all, of the procedural requirements to bring a motion to compel 3 discovery responses, as set forth in Federal Rule of Civil Procedure 37 and Local Rule 251. For 4 example, plaintiff has failed to reproduce or include a copy of the discovery requests that he 5 alleges he served on defendants. See Local Rule 251(c). While the court does not hold litigants 6 proceeding pro se to the same standards that it holds attorneys, at a minimum, plaintiff, as the 7 moving party, has the burden of demonstrating which discovery requests are the subject of his 8 motion to compel and why the information he seeks through discovery is relevant to the 9 prosecution of this action. See, e.g., Brooks v. Alameida, No. 2:03-cv-2343 JAM EFB, 2009 WL 10 331358 at *2 (E.D. Cal. Feb.10, 2009) (“Without knowing which responses plaintiff seeks to 11 compel or on what grounds, the court cannot grant plaintiff's motion.”); Nelson v. Runnels, 12 No. 2:06-cv-1289 LKK DAD, 2009 WL 2776854 at *2 (E.D. Cal. Aug. 27, 2009) (“Plaintiff is 13 advised that the court is unable to rule on his motion to compel in its present form because it is 14 not clear what plaintiff was asking for in his discovery requests or whether plaintiff's discovery 15 requests were proper.”). Plaintiff has also failed to file a proof of service indicating that he served 16 the discovery requests on the defendants, yet another reason to deny his motion. See, e.g., 17 Bridges v. Hubbard, No. 2:09-cv-0940 GEB DAD, 2012 WL 1901301 at *1 (E.D. Cal. May 24, 18 2012) (“Because plaintiff has failed to demonstrate that he properly served defendants with his 19 discovery requests, the court has no basis on which to grant this aspect of his motion to 20 compel.”); Palmer v. Crotty, No. 1:07–CV–0148 LJO DLB, 2010 WL 4279423 at *1 (E.D. Cal. 21 Oct. 22, 2010) (denying motion to compel because plaintiff failed to submit any evidence that he 22 served discovery requests on defendant). 23 More importantly, plaintiff has entirely failed to demonstrate diligence in pursuing 24 discovery in this action. “The district court does not abuse its discretion by denying further 25 discovery if the movant has failed diligently to pursue discovery in the past.” Conkle v. Jeong, 73 26 F.3d 909, 914 (9th Cir. 1995). See also Nidds v. Schindler Elevator Corp., 113 F.3d 912, 921 27 (9th Cir. 1997) (holding that a party’s failure to diligently pursue discovery in the past is 28 sufficient reason for the court to deny further discovery). On August 21, 2014, the court in this 9 1 case initially set a discovery deadline of October 25, 2013 and a pretrial motion deadline of 2 January 17, 2014. (ECF No. 23.) On August 27, 2013, based on defendants’ objections to these 3 dates, the court extended the discovery deadline to April 25, 2014 and the pretrial motion 4 deadline to June 17, 2014. (ECF No. 27.) Yet, plaintiff states that he did not serve the request for 5 production of documents at issue until May 2014, i.e., after the discovery deadline had passed and 6 more than eight months after the discovery deadline in this case was first extended. The court 7 cannot countenance this lack of diligence. As for plaintiff’s arguments regarding his placement in 8 administrative segregation and loss of legal documents, they are also unavailing. Plaintiff did not 9 enter administrative segregation until July 3, 2014, after both the discovery and pre-trial motion 10 deadlines had passed; it is therefore unclear why this placement in administrative segregation 11 would have had any effect on plaintiff’s ability to conduct timely discovery in this action. 12 13 Accordingly, the court will deny plaintiff’s motions for an extension of the discovery deadline and to compel responses to his requests for production of documents. 14 D. Defendants’ motion to compel 15 On April 16, 2014, defendants filed a motion seeking to compel plaintiff to respond to 16 special interrogatories. (ECF No. 42.) Defendants allege in their motion that they propounded 17 special interrogatories on plaintiff on August 22, 2013, and that plaintiff subsequently failed to 18 respond. Defendants claim that they then wrote to plaintiff on April 1, 2014, requesting 19 responses by April 11, 2014, and that none were forthcoming. Plaintiff has not filed an 20 opposition to this motion. 21 As is the case with plaintiff’s motion to compel, discussed above, defendants have failed 22 to reproduce or include a copy of the special interrogatories which they claim to have served on 23 plaintiff. Instead, defense counsel merely writes: 24 25 26 27 28 Defendants . . . propounded special interrogatories to obtain all facts supporting Plaintiff’s contention that each defendant was deliberately indifferent to his medical needs while he was incarcerated at Mule Creek State Prison. The special interrogatories also appropriately sought all facts supporting his claim that he had exhausted all of his administrative remedies against the Defendants prior to bringing suit. These interrogatories are relevant to the issues of liability and damages. 10 1 (ECF No. 42 at 4). Defendants’ counsel, Deputy Attorney General Nguyen, has included a 2 supporting declaration, which also fails to reproduce, or include as an attachment, the 3 interrogatories in question. The court cannot merely rely on defendants’ representations 4 regarding the nature of the interrogatories. Federal Rule of Civil Procedure 26 provides that 5 “[f]or good cause, the court may order discovery of any matter relevant to the subject matter 6 involved in the action.” Fed. R. Civ. P. 26(b)(1). Without being able to examine the discovery 7 requests at issue, the court cannot make a determination as to whether this relevancy standard has 8 been satisfied. Accordingly, the court will also deny defendants’ motion to compel. E. Plaintiff’s motion for appointment of counsel 9 On August 5, 2014, plaintiff filed a renewed7 motion for appointment of counsel. (ECF 10 11 No. 54.) He therein states his reasons for seeking the appointment of counsel as follows: 12 1. Plaintiff is not able to afford counsel. 13 2. The issues involved in this case are complex. 14 3. The prison limits the hours that plaintiff may have access to the prison library and the law materials contained there are very limited. 15 16 4. The Prisoner Frederick w. Smith [who was assisting plaintiff] is in a depression and stressing, the record will show he just came back to the prison May 29, 2014, from suicide watch, and can not (sic) continue to help me. And I am unable to do it myself can not (sic) file a respond with the needed discovery for documents, and pursuant to FRCP 34, 26 etc. 17 18 19 5. The ends of justice would best be served in this case if an attorney was appointed to represent the plaintiff. 20 21 (ECF No. 54 at 1-2.) 22 As the court previously advised plaintiff, the United States Supreme Court has ruled that 23 district courts lack authority to require counsel to represent indigent prisoners in § 1983 cases. 24 Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional 25 circumstances, the district court may request the voluntary assistance of counsel pursuant to 28 26 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 27 28 7 On February 12, 2014, the court denied a previous motion by plaintiff for appointment of counsel. (ECF No. 36.) 11 1 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 2 The test for exceptional circumstances requires the court to evaluate the plaintiff’s 3 likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 4 light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 5 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 6 common to most prisoners, such as lack of legal education and limited law library access, do not 7 establish exceptional circumstances that would warrant a request for voluntary assistance of 8 counsel. In the present case, which involves a straightforward medical deliberate indifference 9 claim against two defendants, the court previously failed to find the required exceptional 10 circumstances. Nothing in plaintiff’s renewed motion for appointment of counsel has changed 11 this assessment. Accordingly, plaintiff’s renewed motion for appointment of counsel will be 12 denied at this time. 13 III. Conclusion 14 Based on the foregoing, IT IS HEREBY ORDERED that: 15 1. Defendants’ motion for an order compelling plaintiff to participate in a video 16 deposition is granted. Defendants shall re-notice plaintiff’s deposition so that it takes 17 place no later than February 28, 2015. Defendants may apply to the court for an order 18 and writ of habeas corpus ad testificandum if one is required to produce plaintiff 19 outside the facility where he is currently incarcerated. Defendants’ motion for 20 discovery sanctions (ECF No. 43) is otherwise denied. 21 22 23 2. The court’s August 21, 2013 Discovery and Scheduling Order, as modified by subsequent order, is hereby amended as follows: a. The April 25, 2014 deadline for discovery and to file any motions to compel 24 discovery is vacated, and reset for March 15, 2015, solely for the purposes of 25 allowing defendants to take plaintiff’s deposition. Neither party is granted 26 leave to propound additional discovery requests. 27 28 b. The June 17, 2014 deadline to file pretrial motions (except motions to compel) is vacated, and reset for April 15, 2015. 12 1 3. Defendants’ motion to compel discovery responses (ECF No. 42) is denied. 2 4. Plaintiff’s motion for monetary sanctions (ECF No. 46) is denied. 3 5. Plaintiff’s motion for an extension of time in which to conduct discovery (ECF 4 No. 52) is denied. 5 6. Plaintiff’s motion to compel discovery responses (ECF No. 53) is denied. 6 7. Plaintiff’s motion for appointment of counsel (ECF No. 54) is denied. 7 8. Within fourteen (14) days of filing of this order, counsel for defendants shall file a 8 status report informing the court whether plaintiff currently has access to his legal 9 materials, and if not, what arrangements have been made to allow plaintiff adequate 10 access so that he can prepare for his deposition and file an opposition to any 11 forthcoming motion for summary judgment. 12 IT IS HEREBY RECOMMENDED that Defendants’ motion for summary judgment (ECF 13 No. 50) be denied without prejudice to its re-filing in compliance with the new April 15, 2015 14 deadline for the filing of pretrial motions. 15 These findings and recommendations are submitted to the United States District Judge 16 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 17 after being served with these findings and recommendations, any party may file written 18 objections with the court and serve a copy on all parties. Such a document should be captioned 19 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 20 objections shall be served and filed within fourteen days after service of the objections. The 21 parties are advised that failure to file objections within the specified time may waive the right to 22 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 23 Dated: January 6, 2015 24 25 26 27 DAD:10 coop0602.discovery 28 13
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