Clinton v. California Department of Corrections et al

Filing 575

ORDER signed by Magistrate Judge Craig M. Kellison on 12/15/2015 ORDERING that plaintiff's 571 motion for a new settlement conference date is DENIED; plaintiff's 561 , 573 requests for appointment of counsel or referral to the pro b ono clinic are DENIED; plaintiff's 560 request to be excluded from the time restrains set forth in Local Rule 230 is DENIED; plaintiff's 564 motion to seal the docket in this case is DENIED; defendant's 563 request for additional time to respond to plaintiff's motion for adverse inference is GRANTED and the opposition thereto is deemed timely filed; and plaintiff's 559 motion for adverse inference regarding destruction of documents is DENIED. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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THOMAS CLINTON,
Plaintiff,

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No. 2:05-cv-1600-JAM-CMK-P

vs.

ORDER

CALIFORNIA DEPARTMENT OF
CORRECTIONS, et al.,

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Defendants.
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Plaintiff, a former state prisoner proceeding pro se, brings this civil rights action

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pursuant to 42 U.S.C. § 1983. Pending before the court are several motions filed by plaintiff.

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This case was set for a settlement conference on September 24, 2015, which did not occur as

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plaintiff informed both the court and defense counsel that attendance was not possible. Plaintiff

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has requested a new date, but given the reasons plaintiff provided for not attending the last

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settlement conference, the court does not find this case to be ripe for settlement. Plaintiff’s

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request for a new settlement conference date (Doc. 571) will therefore be denied and this case

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will proceed to trial.

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Plaintiff continues to seek appointment of counsel or referral to the pro bono
program. As the court had stated several times, this case does not present the required
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exceptional circumstances necessary for the appointment of counsel. The court previously

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denied plaintiff’s request to appoint counsel, stating:

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the United States Supreme Court has ruled that district courts lack
authority to require counsel to represent indigent plaintiffs in civil
actions. See Mallard v. United States Dist. Court, 490 U.S. 296,
298 (1989). A plaintiff in a civil case generally has no right to
appointed counsel. See Hernandez v. Whiting, 881 F.2d 768,
770-71 (9th Cir. 1989); United States v. 30.64 Acres, 795 F.2d
796, 801 (9th Cir. 1986).
In certain exceptional circumstances, the court may request
the voluntary assistance of counsel pursuant to 28 U.S.C.
§ 1915(e)(1). See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.
1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir.
1990). A finding of “exceptional circumstances” requires an
evaluation of both the likelihood of success on the merits and the
ability of the plaintiff to articulate his claims on his own in light of
the complexity of the legal issues involved. See Terrell, 935 F.2d
at 1017. Neither factor is dispositive and both must be viewed
together before reaching a decision. See id.
In the present case, the court does not at this time find the
required exceptional circumstances. First, the facts and law
concerning plaintiff’s one remaining claim are not overly complex.
Second, the record demonstrates that plaintiff so far appears able to
articulate his claims on his own as his pleadings are legible and
reasonably articulate. Third, while plaintiff’s claim has survived
summary judgment, the court cannot say that plaintiff has
demonstrated any particular likelihood of success on the merits.
The one remaining claim, as set forth above, is whether defendant
Cooper violated plaintiff’s Eighth Amendment rights by failing to
honor his medical chronos for an extra blanket and tennis shoes. A
prison official violates the Eighth Amendment only when two
requirements are met: (1) objectively, the official’s act or omission
must be so serious such that it results in the denial of the minimal
civilized measure of life’s necessities; and (2) subjectively, the
prison official must have acted unnecessarily and wantonly for the
purpose of inflicting harm. See Farmer v. Brennan, 511 U.S. 825,
834 (1994). Thus, to violate the Eighth Amendment, a prison
official must have a “sufficiently culpable mind.” See id. From
the limited evidence that has been presented to the court to date,
the undersigned cannot reasonably find that a jury will determine
withholding an extra blanket and tennis shoes to be sufficiently
serious as to violate plaintiff’s Eight Amendment rights. While
that is a factual question for the jury to decide, for the purposes of
ruling on plaintiff’s request for counsel, the undersigned does not
find any particular likelihood of plaintiff’s success on the merits of
his claim. His request for the appointment of counsel will
therefore be denied.
(Order, Doc. 552, filed January 13, 1015).
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The court further noted that plaintiff is no longer incarcerated and is not restricted

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in reaching out to the legal community as a whole, and/or the Civil Rights Clinic, personally in

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an attempt to obtain legal assistance. Nothing has changed in this case to alter that analysis. To

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the extent plaintiff indicates trial attendance without counsel may not be possible due to having

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to re-live the events surrounding the rape, the court notes the remaining claim is not associated

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with rape and only relates to defendant Cooper’s alleged failure to honor plaintiff’s medical

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chronos. Accordingly, plaintiff’s requests for appointment of counsel or referral to the pro bono

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clinic (Docs. 561, 573) are denied.

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Plaintiff next requests to be excluded from the time restrains set forth in Local

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Rule 230 (Doc. 560). It is unclear what it is plaintiff needs additional time for. Rule 230

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governs the time for filing and opposing motions, setting motions for hearing, and filing

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applications for reconsideration. This case is ready to be set for trial. No further motions are

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anticipated to be filed with the exception of pretrial motions such as motions in limine, which

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will be addressed by the District Court at the time of the pretrial conference. When plaintiff files

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a pretrial statement, additional time can be requested to address specific motions if necessary.

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Additional time can also be requested from defense counsel and/or the court in order to respond

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to any motion that may be filed. The undersigned does not find it necessary to enter an order

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excluding plaintiff from Rule 230 at this time, and the request to do is denied.

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Plaintiff is also requesting the court seal the docket in this case (Doc. 564).

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Plaintiff indicates that there are some people who are attempting to use the information in this

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case against plaintiff. However, no showing has been made that meet the criteria for sealing any

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of the documents pursuant to Local Rules 140-142. If plaintiff can point the court to specific

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document containing personal information, and provide the necessary information as to why a

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specific document should be sealed, the court may consider such a request. However, based on

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the general request made, the court finds no basis to seal any specific document much less the

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entire action.
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Finally, plaintiff is requesting the court hold an adverse inference hearing to

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determine if the defendants have destroyed documents (Doc. 559). Plaintiff has raised the

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destruction of documents several times, and the issue has been addressed. Specifically, the court

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found the documents plaintiff alleges were destroyed at best related to claims which have been

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dismissed from this case or were decided on the basis of law not fact. He now claims some

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documents related to defendant Cooper were also destroyed, including a Citizen’s complaint

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reviewed by the Deputy Warden at California Men’s Colony’s. In support of this claim, plaintiff

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provides responses to request for production of documents, wherein it is outlined that the Chief

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Deputy Warden did not keep record of such appeals, but that the records retention schedule

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provides for keeping Citizens Complaints for five years.
Defendant objects1 to the adverse inference sanctions on the grounds that the

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discovery responses plaintiff provides were from a different case, Clinton v. Green, et. al., 08-cv-

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4180 DOC (OP) (C.D. Cal. 2008), not this one. In addition, defendant argues that there is no

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indication that the alleged documents have any relevance to the remaining claim, or that

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defendant Cooper was responsible for the preservation or destruction of the documents.
The undersigned agrees, and finds no basis to grant plaintiff’s motion. As

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discussed in previous orders, the documents plaintiff has claims were destroyed have no

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relevance to the remaining claim. As to the Citizen’s Complaint he alleges to have filed against

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defendant Cooper, he fails to explain what the complaint related to, and whether he requested the

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document during discovery in this case. Plaintiff offers no information as to how this Citizen’s

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Complaint is relevant to his claims against Cooper.

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Defendant filed a motion for additional time to respond to plaintiff’s motion (Doc.
563). Good cause appearing, that motion will be granted, and the opposition is deemed timely
filed.
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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s motion for a new settlement conference date (Doc. 571) is

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Plaintiff’s requests for appointment of counsel or referral to the pro bono

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denied;

clinic (Docs. 561, 573) are denied;

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3.

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Rule 230 (Doc. 560) is denied;

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4.

Plaintiff’s motion to seal the docket in this case (Doc. 564) is denied;

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Defendant’s request for additional time to respond to plaintiff’s motion for

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Plaintiff’s request to be excluded from the time restrains set forth in Local

adverse inference (Doc. 563) is granted and the opposition thereto is deemed timely filed; and

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Plaintiff’s motion for adverse inference regarding destruction of

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documents (Doc. 559) is denied.

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DATED: December 15, 2015
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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