Gornick v. California Department of Corrections, et al.

Filing 61

ORDER DENYING 41 45 49 Motion to Appoint Counsel ; ORDER GRANTING Plaintiff's 44 Motion for 45 Day Extension of Time ; ORDER STRIKING 40 Plaintiff's First Request for Production of Documents signed by Magistrate Judge Larry M. Boyle on 9/21/2009. ( Filing Deadline: 11/6/2009)(Figueroa, O)

IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF CALIFORNIA

P A U L A. GORNICK, SR.,

) ) P la in tif f , ) ) v. ) ) C A L I F O R N IA DEPARTMENT OF ) C O R R E C T IO N , et al., ) ) D ef en d an ts. ) _________________________________)

C V 06-CV-0296 BLW-LMB (PC)

ORDER

T h is prisoner civil rights case has been referred to the undersigned United States M a g is tra te Judge under 28 U.S.C. § 636(b)(1). (Docket No. 59). Currently pending and c o n sid e re d herein is (1) Plaintiff's First Request for Production of Documentation (D o c k e t No. 40), (2) Plaintiff's Motion to Appoint Counsel (Docket No. 41), (3) P la in tif f 's Motion for 45 Day Extension of Time (Docket No. 44), (4) Plaintiff's Motion to Appoint Counsel (Docket No. 45) and (5) Plaintiff's Motion to Appoint Counsel (D o c k e t No. 49).1 Having reviewed the motions, responses and relevant portions of the

Also pending but will be considered separately is Defendant's Motion to Dismiss (D o c k e t No. 47), Plaintiff's Motion for Court to Conduct an In Camera Review of W ith h e ld Documents and Information (Docket No. 48), and Plaintiff's Motion To S u m m o n s Defendants C/O Do Canto And Warden Sanchez (Docket No. 58). ORDER AND REPORT AND RECOMMENDATION - 1

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re c o rd , the Court concludes that oral argument is unnecessary to resolve these matters and w ill not aide the Court in its decision, and enters the following orders accordingly. R E Q U E S T FOR PRODUCTION OF DOCUMENTS P lain tiff may obtain relevant records and documents by sending discovery requests to Defendants' counsel after Defendants answer the complaint. Discovery requests s h o u ld not be filed with the Court. The Court is not otherwise involved in aiding Plaintiff in obtaining records or other items regarding his claims, unless Plaintiff first requests th e se items in a proper manner from opposing counsel, opposing counsel refuses to p ro v id e the items, Plaintiff tries to resolve the dispute, and then Plaintiff files a motion to c o m p e l discovery after all other steps have been taken.2 Records and documents from th ird parties who are not a part of this lawsuit may be obtained by requesting issuance of a s u b p o e n a duces tecum from this Court. The Request for Production of Documents shall be stricken. M O T I O N S FOR APPOINTMENT OF COUNSEL P e n d in g before the Court are three motions renewing Plaintiff's request for a p p o in tm e n t of counsel. (Dockets No. 41, 45 and 49). Plaintiff has requested and been d e n ie d appointment of counsel three times previously (see Docket Nos. 20 and 37). The

Plaintiff has filed a request for in camera review of documents Defendant appears to have withheld from discovery for security reasons. The Court construes pro se filings lib e ra lly, and will construe the motion as a motion to compel production of the d o c u m e n ts. The court will decide the request for in camera review after making its r e c o m m e n d a tio n regarding the pending motion to dismiss. O R D E R AND REPORT AND RECOMMENDATION - 2

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b a se s for Plaintiff's first pending motion (Docket No. 36) are either the same or similar to th o s e previously stated, and include that he is indigent, limited in his ability to litigate due to his incarceration, that the issues are complex and will require significant research and in v e stig a tio n and that counsel would be better able to present witnesses and evidence at trial. In his renewed motions, Plaintiff also adds that he needs assistance in u n d erstan d in g what is being asked of him in discovery and in handling the Defendant's p ro d u c tio n of documents, or objections to his requests, and that he has no access to other p ris o n e rs who have legal knowledge and who can assist him. U n lik e criminal defendants, prisoners and indigents in civil actions have no c o n s titu tio n a l right to counsel unless their physical liberty is at stake. Lassiter v. Dept. of S o c ia l Services, 452 U.S. 18, 25 (1981). Plaintiff makes no allegation in this action that h is personal liberty is at stake. He is no longer residing in the facility where the actions w e re alleged to have been taken against him. W h e th e r a court appoints counsel for indigent litigants is within the court's d is c re tio n . Wilborn v. Escalderon, 789 F.2d 1328, 1330-31 (9th Cir. 1986); Terrell v. B r e w e r, 935 F.2d 1015, 1017 (9th Cir. 1990). In civil cases, counsel should be appointed o n ly in "extraordinary cases." Id. at 1330. To determine whether extraordinary c ir c u m s ta n c e s exist, the court should evaluate two factors: (1) the likelihood of success o n the merits of the case, and (2) the ability of the plaintiff to articulate his claims pro se in light of the complexity of legal issues involved. Terrell v. Brewer, 935 F.2d 1015,

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1 0 1 7 (9th Cir. 1990). Neither factor is dispositive, and both must be evaluated together. Id. Applying the factors to this case, the Court finds that Plaintiff's Complaint, lib era lly construed, states a claim upon which relief could be granted if the allegations are p ro v e n at trial. However, without more than the bare allegations of the Complaint, it is p re s e n tly impossible to determine the likelihood of Plaintiff's success on the merits. Moreover, there is presently a motion to dismiss pending alleging that Plaintiff failed to e x h a u s t his administrative remedies. Plaintiff has articulated his claims sufficiently, and the legal issues are not c o m p lex in this matter. Based on the foregoing reasons the Court finds it appropriate to d e n y Plaintiff's Motions for Appointment of Counsel at this time. The Court may re c o n sid e r at a later date if Plaintiff's claims survive the motion to dismiss on procedural g ro u n d s , and appointment of counsel seems appropriate. Plaintiff should be aware that the federal court has no authority to require attorneys to represent indigent litigants in civil cases under 28 U.S.C. § 1915(d). Mallard v. U.S. D is t. Court for Southern Dist. of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). Rather, when a Court "appoints" an attorney, it can only do so if the attorney voluntarily a c c e p ts the assignment. Id. The Court has no funds to pay for attorney's fees in civil m atters, such as this one. Therefore, it is often difficult to find attorneys willing to work o n a case without payment, especially in prisoner cases, where contact with the client is

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e s p e c ia lly difficult. For these reasons, Plaintiff should attempt to procure his own c o u n se l on a contingency or other basis, if at all possible. M O T IO N FOR CONTINUANCE P la in tif f seeks 45 days up to and including July 1, 2009, within which to "Respond to Interrogatories by the defendants(s) and Production of documents." (Docket No. 44). Attached as an exhibit to Plaintiff's request are Defendants' Responses to Plaintiff's First R e q u e s t for Production of Documents. The Court is unclear as to the relief the Plaintiff requests. The rules of civil p ro c e d u re applicable to this court action do not provide for Plaintiff to reply to D e f e n d a n t's discovery responses, and do not set forth a specific deadline within which to f ile a motion to compel or other motion to seek relief for another party's inadequate d isco v ery response. Defendants filed a non-opposition to Plaintiff's request for more tim e to respond to discovery, however, which suggests that discovery was served upon P la in tif f . Based on the non-opposition, the motion is granted and any response Plaintiff s e rv e d on or before July 1, 2009 will be deemed timely. ORDER N O W THEREFORE IT IS HEREBY ORDERED that Plaintiff's Motions for A p p o in tm e n t of Counsel (Docket Nos. 41, 45 and 49) are DENIED; IT IS FURTHER ORDERED that Plaintiff's Motion for 45 Day Extension (D o c k e t No. 44) is GRANTED;

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IT IS FURTHER ORDERED that Plaintiff's First Request for Production of D o c u m en ts (Docket No. 40) be STRICKEN. D A T E D : September 21, 2009.

Honorable Larry M. Boyle U n ite d States Magistrate Judge

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