Warner v. Cate et al

Filing 48

ORDER signed by Magistrate Judge Edmund F. Brennan on 11/9/2011 DENYING 46 Motion to Appoint Counsel; GRANTING, in part, 42 Motion to Compel, Plaintiff shall provide discovery responses and submit to deposition as stated herein, Defendants' request for monetary sanctions is DENIED; GRANTING 44 Motion to Modify the Scheduling Order. Despositive Motions due within 90 days. (Michel, G)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EARL WARNER,
Plaintiff,

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vs.

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No. CIV S-09-1568 KJM EFB P

MATTHEW L. CATE, et al.,
Defendants.

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ORDER
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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. Currently before the court are defendants’ motions to compel and modify the

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scheduling order and plaintiff’s motion for appointment of counsel. Dckt. Nos. 42, 45, 46. For

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the reasons provided below, the court will deny the motion for counsel and grant the motions to

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compel and modify the schedule.

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I.

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Background
In a motion for appointment of counsel denied by the court on May 17, 2011, plaintiff

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stated that he was transferred to Pleasant Valley State Prison earlier this year and that much of

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his property was left behind, including all of his “declarations,” “evidentiary documents,” and

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eyeglasses. Dckt. No. 31 at 1. On January 20, 2011, plaintiff “suffered a nervous breakdown,

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resulting in a self-inflicted laceration, which required eighteen stitches.” Id. Plaintiff was placed
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in a crisis bed at the Correctional Treatment Center and later transferred to the Departmental

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Mental Hospital, where he remains. Id. at 1-2. Plaintiff claimed that his access to the law library

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was very limited at the hospital, that he was not allowed to have an ink pen or glasses in his

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room, and that he was permitted to write only during group recreational programs. Id. at 2.

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Because the alleged restrictions placed on plaintiff’s ability to write and his access to his

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legal materials, eyeglasses, and the library could have formed the basis for a protective order

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limiting or lifting such restrictions, the court construed plaintiff’s motion as including a request

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for such a protective order and ordered defendants to inquire into the status of plaintiff’s access

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to his legal materials, eyeglasses, and the law library and any restrictions on plaintiff’s ability to

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write and to show cause why a protective order should not issue. Dckt. No. 39.

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Defendants responded to the order on June 27, 2011. Dckt. No. 41. A declaration by G.

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Thumser, Associate Warden at the California Medical Facility, where plaintiff currently resides,

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attested that plaintiff received five boxes of personal property, including three boxes of

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paperwork, on April 5, 2011. Dckt. No. 41-2 at ¶ 3. Plaintiff was observed wearing eyeglasses

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on June 22, 2011. Id. While plaintiff’s access to the law library and a pen may have been

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restricted when he was at a higher level of care, he was placed in a lower level of care on March

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30, 2011. Id., ¶ 4. At this lower level of care, plaintiff no longer needed permission from a

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clinician to go to the law library and could access library materials through a paging system. Id.

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His ability to write was similarly no longer restricted at the lower level of care. Id.. ¶ 6. In sum,

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Thumser’s declaration attested that, at least since April 5, 2011, plaintiff has had access to his

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legal materials, eyeglasses, and library materials, and has been permitted to write without

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restriction. Accordingly, the court discharged the order to show cause.

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Defendants have now filed a motion to compel plaintiff’s discovery responses, because

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plaintiff has not responded to their discovery requests and has refused to submit to a deposition.

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Dckt. No. 42. The court ordered plaintiff to file a response to the motion to compel, which

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plaintiff has now filed, along with a renewed request for counsel. Dckt. No. 46.
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II.

Motion for Counsel

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In his combined renewed motion for counsel and opposition to the motion to compel,

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plaintiff declares that he receives “psychotropic medication daily for a ‘Clinical Depression’

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condition,” that he suffers undescribed side-effects from the medication and is feeling “stresses

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and strains associated with the demands of prosecuting this case,” and that he lacks “the mental

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capacity to proceed in Pro. Per.” Dckt. No. 46 at 2, 3, 4.1 Plaintiff has submitted no evidence

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beyond his declaration corroborating these claims, describing the alleged side-effects of his

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medication, or otherwise showing why plaintiff’s condition prevents him from effectively

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litigating his case without counsel. Indeed, plaintiff appears to believe that it is the court’s

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obligation to seek out such evidence. See id. at 3 (arguing that it would be a miscarriage of

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justice and abuse of discretion for the court to grant defendants’ motion to compel without

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obtaining evidence “either supporting or disaffirming plaintiff’s contentions of record.”)

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The court notes that plaintiff’s communications with the court and opposing counsel (see

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Exhibits G, I, L, and O to the declaration of Matthew Ross Wilson submitted in support of

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defendants’ motion to compel, Dckt. No. 42) since the change in his mental health status and

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transfer have been lucid and organized. When seeking relief from the court, it is plaintiff’s

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obligation – not the court’s – to provide evidence supporting his claims. Plaintiff has failed to

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describe how his mental condition prevents him from litigating his case and has provided no

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evidence, such as a declaration from a treating mental health professional, corroborating this

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claim. As stated in the order of May 17, 2011 denying appointment of counsel, plaintiff has

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given the court no reason to believe that his case presents the type of exceptional circumstances

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that would justify appointment of counsel. Accordingly, the renewed request for counsel will be

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denied. If plaintiff believes he cannot prosecute the case at this time, he may seek a stay of

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proceedings or a dismissal without prejudice by appropriate motion.

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Page numbers cited herein refer to those assigned by the court’s electronic docketing system
and not those assigned by the parties.
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III.

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Motion to Compel
On March 29, 2011, some defendants timely served plaintiff with requests for production

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of documents (RFPs). Dckt. No. 42, Wilson Decl., Exs. A-F. Plaintiff sought an extension of

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time from defendants to respond due to his transfer, mental health status, and inability to access

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his legal documents. Id., Ex. G. Defendants extended plaintiff’s deadline until May 27, 2011,

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but plaintiff again failed to provide responses, stating that his mental health status, treatment, and

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placement interfered with his ability to respond. Id., Exs. H, I.

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Another defendant propounded a set of RFPs on plaintiff on May 3, 2011. Id., Ex. J. On

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June 24, 2011, defendants noticed plaintiff’s deposition. Id., Ex. N. Defense counsel continued

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to communicate with plaintiff regarding his obligation to respond to the RFPs and submit to

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deposition. Id., Exs. K, L, M. Plaintiff never provided responses to the RFPs and informed

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defense counsel that he did not intend to submit to deposition until he had been appointed

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counsel by the court. Id., Ex. O. Defense counsel nevertheless attempted to depose plaintiff at

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the California Medical Facility on July 12, 2011. Id. at ¶ 21. Plaintiff refused to be deposed. Id.

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at ¶¶ 22-25.

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In his opposition, plaintiff vaguely implies that he continues to lack adequate access to

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the law library. Dckt. No. 46 at 2. However, the documents appended to plaintiff’s opposition

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indicate that plaintiff has access to a paging system for obtaining library materials and having

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copies made. Id. at 6. In addition, plaintiff states that, even if he had adequate access, he would

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not be able to respond to discovery, due to the undescribed side-effects of his medication and the

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“stresses and strains associated with the demands of prosecuting this case.” Id. at 3. As

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discussed above, plaintiff has provided the court with insufficient information and evidence from

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which the court may conclude that plaintiff’s current condition and/or placement are such that he

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cannot respond to discovery or otherwise participate in this litigation. Having initiated this

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action, plaintiff is obligated to litigate it, dismiss it, or seek a stay by appropriate motion.

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Accordingly, defendants’ motion to compel will be granted, and plaintiff shall have 30

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days from service of this order to provide responses to the RFPs propounded by defendants

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Machado, Knipp, Martell, Lucas, Vanderlip, and Deboard on March 29, 2011 and the RFPs

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propounded by defendant Bueno on May 3, 2011. In addition, plaintiff shall submit to

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deposition by defendants in accordance with Federal Rule of Civil Procedure 30.

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Defendants seek attorney fees for bringing the motion to compel. Due to plaintiff’s in

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forma pauperis status, the court declines to issue an award of monetary sanctions at this time.

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However, should plaintiff continue to refuse to participate in the discovery process, defendants

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may seek terminating sanctions against him. See Fed. R. Civ. P. 37(b)(2)(A)(v), 41(b); Valley

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Engineers, Inc. v. Electric Engineering Co., 158 F.3d 1051, 1056-57 (9th Cir. 1998); Henry v.

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Gill Indus., 983 F.2d 943, 946, 948 (9th Cir. 1993). Plaintiff is hereby admonished that failure to

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comply with this order may result in the imposition of terminating sanctions dismissing this case.

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IV.

Motion to Modify the Scheduling Order

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Under the current discovery and scheduling order, dispositive motions were due by

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October 7, 2011. Dckt. No. 34. Due to plaintiff’s refusal to participate in discovery and the need

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for defendants to file a motion to compel, along with other commitments of defense counsel,

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defendants seek extension of that deadline to 90 days from the date of this order. Good cause

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appearing, defendants’ motion to modify the schedule will be granted, and defendants may file

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dispositive motions within 90 days of this order. See Fed. R. Civ. P. 16(b).

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V.

Order

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For the foregoing reasons, it is hereby ORDERED that:

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1. Plaintiff’s September 30, 2011, request for appointment of counsel (Docket No. 46) is

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denied.
2. Defendants’ July 14, 2011 motion to compel (Docket No. 42) is granted in part, and

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plaintiff shall provide discovery responses and submit to deposition as stated in this order.

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Defendants’ request for monetary sanctions is denied.
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3. Defendants’ September 12, 2011 motion to modify the scheduling order (Docket No.

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44) is granted, and defendants shall have 90 days from the date of this order to file dispositive

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motions.

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DATED: November 9, 2011.

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