Gause #162805 v. Indy et al

Filing 25

ORDER denying 21 Plaintiff's "Request to be Appointed Counsel" and denying as moot 22 Plaintiff's "Extension on time frames of Discovery". IT IS FURTHER ORDERED directing the Clerk to strike Plaintiff's May 27, 2016 filing at (Doc. 23 , docketed as "Notice re: Discovery Request." IT IS FURTHER ORDERED granting to the extent set forth herein Plaintiff's filing at (Doc. 24 , docketed as "Motion for Copy of Discovery Response." Th e Clerk is directed to mail Plaintiff a copy of (Doc. 20 . IT IS FURTHER ORDERED that by June 20, 2016, Plaintiff shall show cause why Defendants East and Dentist Doe should not be dismissed without prejudice from this action for failure to serve. Signed by Magistrate Judge Eileen S Willett on 6/6/16. (Attachments: # 1 Document 20)(LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Richard LeGrand Gause,
Plaintiff,

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ORDER

v.

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No. CV-15-02514-JJT-ESW

Unknown Indy, et al.,

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Defendants.

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This is a civil rights action filed by pro se prisoner Richard LeGrand Gause

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(“Plaintiff”) pursuant to 42 U.S.C. § 1983. The Court has reviewed the documents

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recently filed by Plaintiff (Docs. 21- 24) and issues the rulings set forth below.
I. DISCUSSION

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A. Plaintiff’s “Request to be appointed counsel” (Doc. 21)

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In his May 27, 2016 filing (Doc. 21), Plaintiff requests that Court appoint him

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counsel. In support of his request, Plaintiff states in part that (i) he is “being denied

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access to the E-File system and access to have copies made”; (ii) the Arizona Department

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of Corrections (“ADC”) allegedly lied to the Marshals Service that Defendant Dr. Indy1

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is no longer employed by ADC; (iii) he is unsure on how to proceed as to Defendant East,

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who may be deceased; and (iv) correctional officers “are making it near impossible to

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adequately meet deadlines and properly do this suit.”

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The doctor has been served and has answered. (Docs. 11, 17). The correct
spelling of the doctor’s surname is “Ende” (Doc. 11 at 2).

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There is no constitutional right to the appointment of counsel in a civil case. See

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Johnson v. U.S. Dep’t of Treasury, 939 F.2d 820, 824 (9th Cir. 1991); Ivey v. Bd of

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Regents of the Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982). “However, a court

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may under ‘exceptional circumstances’ appoint counsel for indigent civil litigants

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pursuant to 28 U.S.C. § 1915(e)(1).” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir.

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2009) (quoting Agyeman v. Coors. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004)).

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“When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the

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likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his

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claims pro se in light of the complexity of the legal issues involved.’” Palmer, 560 F.3d

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at 970 (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)); see also Terrell v.

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Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).

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dispositive and instead must be viewed together.” Palmer, 560 F3.d at 970 (citing

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Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).

“Neither of these considerations is

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Plaintiff has not demonstrated a likelihood of success on the merits, nor has

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he shown that he is experiencing difficulty in litigating this case because of the

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complexity of the issues involved. Plaintiff’s continued filings with the Court

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indicate that Plaintiff is capable of navigating this proceeding and presenting

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arguments to the Court. See Wilborn, 789 F.2d at 1331 (“If all that was required to

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establish successfully the complexity of the relevant issues was a demonstration of the

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need for development of further facts, practically all cases would involve complex legal

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issues.”). Plaintiff remains in a position no different than many pro se prisoner litigants.

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In sum, Plaintiff has not shown that exceptional circumstances are present that would

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require the appointment of counsel in this case. Having failed to show that any

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exceptional circumstances are present, Plaintiff’s request for appointment of counsel will

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be denied.

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B. Plaintiff’s “Extension on time frames of Discovery” (Doc. 22)

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In the above filing, Plaintiff requests an “indefinite time extension to produce

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Discovery Request #1 until copies can be made.” Plaintiff’s filing, dated May 24, 2016,

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states that Plaintiff is in detention and is “being denied access to make copies, also access

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to the E-File system.” The Court notes that on May 26, 2016, Plaintiff filed a document

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captioned “Discovery Response” (Doc. 20).

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requested Documents in #1 Discovery Request.” Plaintiff’s “Extension on time frames of

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Discovery” (Doc. 22) will be denied as moot.

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The document states “[a]ttached are

C. Plaintiff’s May 27, 2016 Filing at Doc. 23, Docketed as “Notice re:
Discovery Request”
On May 27, 2016, the Clerk of Court docketed a document signed by Plaintiff that
is addressed to Mark Brnovich with the subject line “Discovery Request.”

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introductory paragraph states “Hi, I’m writing with my first Discovery Request.”
Federal Rules of Civil Procedure Rule 5(d) states that “the following discovery
requests and responses must not be filed until they are used in the proceeding or the court
orders filing: depositions, interrogatories, requests for documents or tangible things or to
permit entry onto land, and requests for admission.”

LRCiv 5.2 provides that “[a]

‘Notice of Service’ of the disclosures and discovery requests and responses listed in Rule
5(d) of the Federal Rules of Civil Procedure must be filed within a reasonable time after
service of such papers.”
Plaintiff has not “used” the discovery requests contained in his filing (Doc. 23) in
the proceeding (e.g. by relying upon responses in support of a motion, supporting a
motion to compel, etc.). Therefore, Plaintiff’s filing of the actual discovery requests
instead of a “Notice of Service” is in violation of LRCiv 5.2 and Rule 5(d) of the Federal
Rules of Civil Procedure.

Accordingly, Plaintiff’s filing docketed as “Notice re:

Discovery Request” (Doc. 22) will be stricken.

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D. Plaintiff’s Filing at Doc. 24, Docketed as “Motion for Copy of Discovery
Response”

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On May 31, 2016, Plaintiff filed a document captioned as “Need Discovery

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Response Copy,” which the Clerk of Court docketed as “Motion for Copy of Discovery

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Response.” Plaintiff provides a detailed recount of an alleged error that resulted in

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Plaintiff not receiving a complete copy of Document 20. The Court will direct the Clerk

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of Court to mail Plaintiff a copy of Document 20.

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E. Service on Defendants East and Dentist Doe

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The Court ordered service of the First Amended Complaint (Doc. 8) on

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Defendants Ende, FHA Doe, Dentist Doe, East, and Utterbeck. (Doc. 9 at 15). All

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defendants have been served and have answered except for Defendant East and Dentist

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Doe. (Docs. 11-17). The time for the completion of service on Defendants East and Doe

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has expired. (Doc. 9 at 16). Accordingly, by June 20, 2016, Plaintiff shall show cause

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why Defendants East and Dentist Doe should not be dismissed without prejudice from

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this action for failure to serve pursuant to the Rule 4(m) of the Federal Rules of Civil

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Procedure and Rule 16.2(b)(2)(B)(ii) of the Local Rules of Civil Procedure.
II. CONCLUSION

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Based on the foregoing,

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IT IS ORDERED denying Plaintiff’s “Request to be Appointed Counsel” (Doc.

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IT IS FURTHER ORDERED denying as moot Plaintiff’s “Extension on time
frames of Discovery” (Doc. 22).
IT IS FURTHER ORDERED directing the Clerk of Court to strike Plaintiff’s
May 27, 2016 filing at Doc. 23, docketed as “Notice re: Discovery Request.”

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IT IS FURTHER ORDERED granting to the extent set forth herein Plaintiff’s

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filing at Doc. 24, docketed as “Motion for Copy of Discovery Response.” The Clerk of

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Court is directed to mail Plaintiff a copy of Document 20.

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IT IS FURTHER ORDERED that by June 20, 2016, Plaintiff shall show cause

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why Defendants East and Dentist Doe should not be dismissed without prejudice from

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this action for failure to serve pursuant to the Rule 4(m) of the Federal Rules of Civil

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Procedure and Rule 16.2(b)(2)(B)(ii) of the Local Rules of Civil Procedure.

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Dated this 6th day of June, 2016.

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