Gonzalez v. The Fresno Sheriff's Department et al

Filing 35

ORDER GRANTING 31 Motion for Extension of Time; ORDER DENYING 32 Motion to Appoint Counsel; and ORDER DENYING 33 Motion to Compel signed by Magistrate Judge Barbara A. McAuliffe on 7/13/2017. Within sixty (60) days, Plaintiff shall provide the Court with written notice identifying Doe Defendants with enough information to locate the defendants for service of process. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL HERNANDEZ GONZALEZ,

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Plaintiff,

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v.
FRESNO SHERIFF’S DEPARTMENT, et
al.,

Case No. 1:15-cv-01200-BAM (PC)
ORDER GRANTING MOTION FOR
EXTENSION OF TIME
(ECF No. 31)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(ECF No. 32)

Defendants.

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ORDER DENYING MOTION TO COMPEL
(ECF No. 33)

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SIXTY (60) DAY DEADLINE

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I.

Background

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Plaintiff Michael Hernandez Gonzalez (“Plaintiff”) was a detainee at the time of the

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incident and is currently a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action pursuant to 42 U.S.C. § 1983. Plaintiff consented to Magistrate Judge jurisdiction.

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(ECF No. 4.) This action proceeds on Plaintiff’s third amended complaint against Defendants

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Sheriff Mims and Deputy Sheriffs JOHN and JANE DOES 1–10 for failing to protect Plaintiff in

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violation of the Fourteenth Amendment, arising from Defendants’ failure to investigate Plaintiff’s

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subsequent placements in holding cells, after the initial beating on or about October 20, 2012,

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including upon his return from Atascadero. (ECF Nos. 21, 22.)

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On April 12, 2017, the Court issued an order finding service of the third amended

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complaint appropriate on Defendant Mims. The Court further ordered Plaintiff, within ninety

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(90) days from the date of the order, to provide written notice identifying the Doe Defendants

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with enough information to locate the defendants for service of process. (ECF No. 22.)

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On May 12, 2017, Plaintiff filed a motion requesting a 60-day continuance to obtain

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information as to the identity of the Doe Defendants. (ECF No. 25.) As Plaintiff did not include

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any reasons for his request and more than 60 days remained before the original deadline expired,

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the Court issued an order denying Plaintiff’s motion. (ECF No. 26.)

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Currently before the Court are three motions: (1) Plaintiff’s motion for extension of time

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in which to serve unknown defendants, (ECF No. 31); (2) Plaintiff’s motion to appoint counsel,

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(ECF No. 32); and (3) Plaintiff’s motion to compel discovery, (ECF No. 33). Although

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Defendant Mims has not had an opportunity to respond to Plaintiff’s motions, the Court finds a

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response unnecessary. Local Rule 230(l).

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II.

Motion for Extension of Time

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Plaintiff seeks an extension of time in which to identify and serve Doe Defendants in this

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action. Plaintiff states that he has been seeking identifying information for Defendants Deputy

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Sheriffs JOHN and JANE DOES 1–10 but has been unable to acquire the information by the July

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14, 2017 deadline. Plaintiff attaches a second response to his request for information from the

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Custodian of Jail Records, which states that the Fresno County Sheriff’s Department has no

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records subject to disclosure, due to concerns for officer safety, inmate safety, jail security, and

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law enforcement security procedures. (ECF No. 31.) Plaintiff has also attached to his motion to

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compel a third response from the Fresno County Sheriff’s Department, dated June 27, 2017, again

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denying his request for information regarding Doe Defendants. (ECF No. 33, p. 5.)

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Plaintiff has not specified how much additional time is required. However, Plaintiff has

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demonstrated a good faith effort to obtain the identifying information needed for service of

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process, and therefore the Court finds good cause to grant Plaintiff an extension of time to

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identify Doe Defendants. Fed. R. Civ. P. 16(b)(4); 4(m). As discussed below, this extension will

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allow Plaintiff sufficient time to serve the appropriate discovery requests on Defendant Mims and
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receive responses. The Court further finds that Defendant Mims will not be prejudiced by the

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extension of time requested here.

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III.

Motion to Appoint Counsel

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Plaintiff states that he lacks education and literacy, is not an experienced “jail-house

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lawyer,” and he suffers from a mental disability. He further states that he lacks experience with

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the judicial system and has no access to the law library. Plaintiff attaches as exhibits letters

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received from various law offices declining to represent him in this matter. (ECF Nos. 32, 33.)

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Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 952, 954

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n.1 (9th Cir. 1998), and the Court cannot require an attorney to represent plaintiff pursuant to 28

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U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 298

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(1989). However, in certain exceptional circumstances the Court may request the voluntary

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assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.

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Without a reasonable method of securing and compensating counsel, the Court will seek

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volunteer counsel only in the most serious and exceptional cases. In determining whether

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“exceptional circumstances exist, a district court must evaluate both the likelihood of success on

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the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the

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complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted).

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The Court has considered Plaintiff’s motion for the appointment of counsel, but does not

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find the required exceptional circumstances. Even if it is assumed that Plaintiff is not well versed

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in the law and that he has made serious allegations which, if proved, would entitle him to relief,

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his case is not exceptional. This Court is faced with similar cases involving claims of failure to

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protect filed by prisoners proceeding pro se and suffering various medical conditions almost

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daily. These prisoners also must prosecute claims without the assistance of counsel.

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Furthermore, at this stage in the proceedings, the Court cannot make a determination that

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Plaintiff is likely to succeed on the merits. Although the Court has determined Plaintiff has stated

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some claims which may proceed in litigation, it has not determined that those claims have a

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likelihood of ultimately being successful. Also, based on a review of the limited record in this
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case, the Court does not find that Plaintiff cannot adequately articulate his claims.

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IV.

Motion to Compel Discovery

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On July 12, 2017, Plaintiff filed a motion to compel discovery. Plaintiff states that he sent

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requests to the custodian of jail records on June 1, June 16, and July 1, 2017, seeking identifying

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information for Doe Defendants for service of process, and he has also requested his own medical

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records from the custodian of jail records at the Fresno County Jail. (ECF No. 33.) On the basis

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of his motion, it is unclear whether Plaintiff is seeking discovery from one of the defendants or a

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third party to this action.

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a. Legal Standard
In responding to requests for production, defendants must produce documents or other

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tangible things which are in their “possession, custody or control.” Fed. R.Civ. P. 34(a).

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Responses must either state that inspection and related activities will be permitted as requested or

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state an objection to the request, including the reasons. Fed. R. Civ. P. 34(b)(2)(B).

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Actual possession, custody or control is not required. “A party may be ordered to produce

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a document in the possession of a non-party entity if that party has a legal right to obtain the

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document or has control over the entity [that] is in possession of the document.” Soto v. City of

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Concord, 162 F.R.D. 603, 619 (N.D. Cal. 1995); see also Allen v. Woodford, 2007 WL 309945,

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at *2 (E.D. Cal. Jan. 30, 2007) (“Property is deemed within a party’s possession, custody, or

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control if the party has actual possession, custody, or control thereof or the legal right to obtain

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the property on demand.”).

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b. Discussion
If Plaintiff is seeking discovery from Defendant Mims, Plaintiff is advised that discovery

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is now open in this action with respect to Defendant Mims and it is unnecessary to file a motion

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to compel unless a discovery response is found to be unsatisfactory. Plaintiff should refer to the

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Court’s June 28, 2017 Discovery and Scheduling Order for the appropriate procedures for serving

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discovery requests directly on Defendant Mims. (ECF No. 29.)

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If Plaintiff seeks to compel discovery from a third party, such as the Custodian of Jail
Records for the Fresno County Sheriff’s Office, Plaintiff is advised that a motion to compel is not
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the appropriate means to obtain documents from a third party. A Rule 45 subpoena is the only

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discovery method by which information may be obtained from a third party. Fed. R. Civ. P. 34(c)

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(non-parties may be compelled to produce documents by subpoena), 45 (subpoenas); see also

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Frazier v. Redding Police Dept., No. CIV S-11-1351 GGH P, 2012 WL 5868573, at *7–8 (E.D.

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Cal. Nov. 19, 2012) (motion to compel non-party to provide documents not proper in the absence

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of appropriate service of a non-party subpoena in accordance with Fed. R. Civ. P. 45(b)(1));

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Jennings v. Moreland, No. 2:08-cv-01305 LKK CKD P, 2012 WL 4469079, at *2 (E.D. Cal.

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Sept. 27, 2012) (“A motion to compel is the remedy under the Federal Rules of Civil Procedure to

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compel a party’s compliance with a discovery request; it is not the procedure to address a non-

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party’s alleged refusal to comply with a subpoena duces tecum and a subsequent court order to do

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so.”).

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V.

Conclusion and Order

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Accordingly, it is HEREBY ORDERED that:

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1. Plaintiff’s motion for extension of time (ECF No. 31), is GRANTED;

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a. Within sixty (60) days from the date of service of this order, Plaintiff shall

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provide the Court with written notice identifying Doe Defendants with enough

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information to locate the defendants for service of process;

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2. Plaintiff’s motion to appoint counsel (ECF No. 32), is DENIED, without prejudice;

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and
3. Plaintiff’s motion to compel discovery (ECF No. 33), is DENIED, without prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

July 13, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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