Herrera v. Statti

Filing 150

ORDER signed by Magistrate Judge Dale A. Drozd on 9/4/2014 DENYING plaintiff's 134 , 145 motions for relief pursuant to Fed.R.Civ.P. 56(d); plaintiff shall file an opposition to defendant Medina's motion for summary judgment within 60 days; plaintiff's 144 , 148 motions for appointment of counsel are DENIED; and plaintiff's 148 motion for appointment of an expert is DENIED. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERTO HERRERA,

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No. 2:10-cv-1154 MCE DAD P

Plaintiff,

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v.

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P. STATTI, et al.,

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ORDER

Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action. Pending before the

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court are several of motions brought by plaintiff, which the court will address in turn.
BACKGROUND

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Plaintiff is proceeding on an amended complaint against defendant Medina based upon

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the defendant’s alleged failure to provide plaintiff with adequate medical care. Specifically,

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plaintiff alleges that while he was incarcerated at High Desert State Prison (“HDSP”),

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correctional officers engaged in excessive use of force against him, and defendant Medina failed

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to provide him with adequate medical care after that use of force incident. According to plaintiff,

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defendant Medina falsely reported that plaintiff refused medical care. Plaintiff further alleges that

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he was transferred to California State Prison, Corcoran, but upon his return to HDSP defendant

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Medina took him off of his prescribed pain medication for no reason. (Am. Compl. Attach. at 2.)

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PLAINTIFF’S MOTIONS

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First, in response to defendant Medina’s pending motion for summary judgment, plaintiff

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has filed two motions for relief pursuant to Federal Rule of Civil Procedure 56(d). In those

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motions, plaintiff contends that the court should allow him to conduct additional discovery in

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order to oppose defendant’s summary judgment motion. He explains that he previously requested

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from the defendant certain documents, including his medical records and previously-filed inmate

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appeals concerning the defendant’s conduct. According to plaintiff, however, the defendant

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failed to produce the requested documents. Instead, defense counsel told plaintiff that he could

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obtain any responsive documents from his Unit Health Care Record, which would be made

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available upon his request pursuant to normal institutional procedures. Plaintiff maintains that the

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court should require the defendant to produce the requested documents and notes that he has tried

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to obtain certain documents from CDCR staff but has been unable to do so. (Pl’.s Mot. Pursuant

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to Rule 56(d) at 1-2 & Exs. A & B (Doc. No. 134) & Pl.’s Mot. Pursuant to Rule 56(d) at 1-4 &

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Exs. K & M (Doc. No. 145)).

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To obtain relief under Rule 56(d), the moving party must show:
(1) that they have set forth in affidavit form the specific facts that
they hope to elicit from further discovery, (2) that the facts sought
exist, and (3) that these sought-after facts are “essential” to resist
the summary judgment motion.

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State of Cal. v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998). Failure to comply with the rule’s

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requirements “is a proper ground for denying discovery and proceeding to summary judgment.”

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Id. See also Volk v. D.A. Davidson & Co., 816 F.2d 1406, 1416 (9th Cir. 1987) (“The burden is

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on the party seeking to conduct additional discovery to put forth sufficient facts to show that the

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evidence sought exists.”); Hancock v. Montgomery Ward Long Term Disability Trust, 787 F.2d

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1302, 1306 n. 1 (9th Cir.1986) (party opposing summary judgment “has the burden under Rule

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56[d] to show what facts [he] hopes to discover to raise an issue of material fact.”).

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Here, plaintiff’s motions fall short of making the requisite showing that he is entitled to

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relief under Rule 56(d). In particular, plaintiff has not explained what specific facts he hopes to

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discover and why these facts would preclude summary judgment in the defendant’s favor. See
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Harris v. Duty Free Shoppers Ltd. P'ship, 940 F.2d 1272, 1276 (9th Cir.1991); Carpenter v.

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Universal Star Shipping, S.A., 924 F.2d 1539, 1547 (9th Cir.1991).

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Moreover, “[t]he district court does not abuse its discretion by denying further discovery

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if the movant has failed diligently to pursue discovery in the past.” Conkle v. Jeong, 73 F.3d 909,

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914 (9th Cir. 1995). See also Nidds v. Schindler Elevator Corp., 113 F.3d 912, 921 (9th Cir.

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1997) (a party’s failure to diligently pursue discovery in the past is sufficient reason for the court

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to deny further discovery). In his pending motions for relief under Rule 56(d), plaintiff broadly

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complains about defendant’s conduct during discovery because he believes that defense counsel

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was required to turn over the documents plaintiff had requested. However, if plaintiff

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experienced difficulty obtaining responsive documents from the defendant after serving him with

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proper discovery requests, plaintiff needed to file a motion to compel during the five-month

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period allotted for discovery in this case. Plaintiff did not do so. Instead, as the court observed in

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its July 29, 2014 order, plaintiff only recently tried to file two motions to compel almost six

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months after the discovery deadline had passed in this case, demonstrating a lack of diligence on

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his part.

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Finally, the court notes that it has conducted a cursory review of defendant’s responses to

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plaintiff’s discovery requests, and the defendant’s responses appear adequate. Defense counsel is

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correct that the defendant is only required to produce documents that are in his “possession,

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custody or control.” Fed. R. Civ. P. 34(a). “Control is defined as the legal right to obtain

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documents upon demand.” United States v. Int’l Union of Petroleum & Indus. Workers, 870 F.2d

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1450, 1452 (9th Cir. 1989). Plaintiff has not explained why he believes defendant Herrera, who

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is no longer employed at HDSP or any California prison, has control of plaintiff’s medical

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records or the previously-filed inmate appeals plaintiff now seeks.

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For all the foregoing reasons, the court will deny plaintiff’s Rule 56(d) motions. In the

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interest of justice, the court will grant plaintiff a final sixty days to file an opposition to

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defendant’s motion for summary judgment. This is more than adequate time in the court’s view

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for plaintiff to prepare and file an opposition in support of his single medical care claim against

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defendant Medina. During this final sixty days, plaintiff may utilize the available prison
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procedures to access his own medical records and previously-filed inmate appeals if he so desires.

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In addition, plaintiff may draft his own declaration signed under penalty of perjury explaining the

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material facts he believes preclude summary judgment in defendant’s favor. The court strongly

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cautions plaintiff that this court will not further delay consideration of the defendant’s motion for

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summary judgment. Furthermore, if plaintiff fails to file an opposition to the pending motion for

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summary judgment as ordered, his failure may be deemed a statement of non-opposition and

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result in a recommendation that defendant’s motion for summary judgment be granted.
Also pending before the court are plaintiff’s two motions for appointment of counsel and a

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motion for appointment of an expert. As to plaintiff’s motions for appointment of counsel, as the

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court previously advised plaintiff, the United States Supreme Court has ruled that district courts

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lack authority to require counsel to represent indigent prisoners in § 1983 cases. Mallard v.

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United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the

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district court may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1).

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Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332,

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1335-36 (9th Cir. 1990).

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The test for exceptional circumstances requires the court to evaluate the plaintiff’s

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likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in

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light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328,

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1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances

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common to most prisoners, such as lack of legal education and limited law library access, do not

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establish exceptional circumstances that would warrant a request for voluntary assistance of

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counsel. In the present case, which involves a straightforward medical deliberate indifference

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claim against one defendant, the court does not find the required exceptional circumstances.
As to plaintiff’s motion for appointment of an expert, although the court granted plaintiff

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leave to proceed in forma pauperis, “‘the expenditure of public funds [on behalf of an indigent

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litigant] is proper only when authorized by Congress.’” Tedder v. Odel, 890 F.2d 210, 211 (9th

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Cir.1989) (quoting United States v. MacCollom, 426 U.S. 317, 321 (1976). The expenditure of

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public funds for an expert witness is not authorized by the in forma pauperis statute or any other

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statute. See 28 U.S.C. § 1915.

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OTHER MATTERS

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Plaintiff has filed an inordinate number of motions in this case, many of which are

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repetitive. Plaintiff is advised that the undersigned (or the assigned district judge) will address all

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of plaintiff’s motions in due course once they are submitted pursuant to Local Rule 230(l).

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Plaintiff need not file additional motions repeating the same arguments and requests for relief.

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Plaintiff is cautioned that improper and superfluous filings impede the progress of a case, and the

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court may impose restrictions on plaintiff’s filings if he does not exercise appropriate restraint in

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the future. See De Long v. Jennessey, 912 F.2d 1144, 1147 (9th Cir. 1990) (“There is strong

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precedent establishing the inherent power of federal courts to regulate the activities of abusive

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litigants by imposing carefully tailored restrictions under the appropriate circumstances.”)

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(quoting Tripati v. Beaman, 878 F.2d 351, 352 (10th Cir. 1989)). Although plaintiff is

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proceeding pro se, he is required to comply with the Federal Rules of Civil Procedure and the

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Local Rules of Court. Plaintiff’s failure to obey court orders and the local and federal rules and

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meet his responsibilities in prosecuting this action may justify dismissal, including dismissal with

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prejudice. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262-63 (9th Cir. 1992).

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CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motions for relief pursuant to Federal Rule of Civil Procedure 56(d) (Doc.

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Nos. 134 & 145) are denied;

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2. Plaintiff shall file an opposition to defendant Medina’s motion for summary judgment

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within sixty days of the date of service of this order. Failure to file an opposition to the pending

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motion for summary judgment will be deemed a statement of non-opposition and result in a

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recommendation that defendant’s motion for summary judgment be granted;

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3. Plaintiff’s motions for appointment of counsel (Doc. Nos. 144 & 148) are denied; and

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4. Plaintiff’s motion for appointment of an expert (Doc. No. 148) is denied.

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Dated: September 4, 2014

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DAD:9
herr1154.56d

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