Frazier v. Redding Police Department et al

Filing 45

ORDER signed by Magistrate Judge Gregory G. Hollows on 4/23/2012 ORDERING that plaintiff's 34 motion to compel defendants to answer deposition questions is DENIED; plaintiff's 37 motion for an order compelling discovery is DENIED; and plaintiff's 33 request for appointment of counsel and 36 amended motion to appoint counsel are DENIED. (Yin, K)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 MATTHEW LUCAS FRAZIER, 11 12 13 14 Plaintiff, vs. REDDING POLICE DEPT., et al., Defendants. 15 16 No. CIV S-11-1351 GGH P ORDER / Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. 17 § 1983. Pending before the court are 1) plaintiff’s motion to compel defendants to answer 18 written deposition questions, filed on February 17, 2012; 2) plaintiff’s motion and amended 19 motion for appointment of counsel, filed on February 17, 2012, and on March 12, 2012, to which 20 latter request, defendants filed a response on March 20, 2012; 3) plaintiff’s motion for an order 21 compelling discovery, filed on March 12, 2012. 22 Plaintiff’s Motions to Compel 23 In his initial motion, plaintiff simply and skimpily moves for the court to order 24 defendants to answer questions put to them under oath in their own words. Motion at docket # 25 34. Of course, defendants are required to respond to discovery questions [interrogatories] (to the 26 extent they are not objected to) under oath (see Fed. R. Civ. P. 33(b)(3)), so plaintiff’s motion on 1 1 that basis is denied as moot. Plaintiff does not provide any questions to which plaintiff indicates 2 a failure to respond. Plaintiff also asks that the court advance costs for discovery expenses, 3 which is not an appropriate request. To the extent that plaintiff seeks to have the defendants take 4 a deposition upon written questions, pursuant to Fed. R. Civ. P. 31, plaintiff fails to demonstrate 5 that he has complied with the requirements of Fed. Rule 31(a)(3). In the required notice from a 6 party who wishes to depose a person by written questions, inter alia, “the name or descriptive 7 title and address of the officer before whom the deposition will be taken” must be stated. Under 8 Rule 31(b), “[t]he party who noticed the deposition must deliver to the officer a copy of all the 9 questions served and of the notice.” Thereafter, the officer is to take the testimony of the 10 deponent, prepare and certify the deposition and return it to the deposing party. There is no 11 showing by plaintiff that he has complied with the requirements for taking a deposition by 12 written questions, and this motion must be denied. 13 In his second motion for an order regarding discovery, it appears what is at issue 14 is a subpoena served on the third party California Department of Corrections and Rehabilitation 15 (CDCR), seeking global positioning system (GPS) “tracks [or trucks].” Motion at 37, p. 1. 16 Plaintiff claims that at first the subpoenaed party permitted him the documents in part, which 17 plaintiff states he used to support his complaint. Id. Plaintiff states that when he sought more 18 detailed documentation as he had been directed, his request was denied and he was told to go 19 through the court, after which CDCR objected to the subpoena. Id. at 2. 20 What is at issue in the second amended complaint are plaintiff’s allegations of the 21 use of excessive force against him by defendants Redding Police Department, Officer Jason 22 Rhoads and Officer Zufall, Badge # 167.1 See Order, filed on October 17, 2011, pp. 1-2. 23 1 24 25 26 “Claims by pretrial detainees are analyzed under the Fourteenth Amendment Due Process Clause, rather than under the Eighth Amendment. Bell v. Wolfish, 441 U.S. 520, 535 n. 16, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Because pretrial detainees’ rights under the Fourteenth Amendment are comparable to prisoners’ rights under the Eighth Amendment, however, we apply the same standards. See Redman v. County of San Diego, 942 F.2d 1435, 1441 (9th Cir.1991).” Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). 2 1 According to plaintiff, on September 26, 2010, plaintiff ran to escape an assault by vigilantes 2 who thought he was a rapist, child molester and/or ex-gangmember. Second Amended 3 Complaint (SAC), p. 1. As plaintiff ran, defendant Officer Rhoads jumped out of his car, 4 pepper-sprayed plaintiff, forced him to lie on the ground, kneeing him numerous times in the 5 back and punching plaintiff in the face. Id., at 1-2. Defendant Officer Zufall cuffed plaintiff’s 6 right hand; defendant Rhoads pinned down plaintiff’s left hand then drew him up from the 7 ground roughly by the cuffs and threw him in the back of defendant Zufall’s car as plaintiff 8 experienced a bout of asthma from the pepper spray. Id., at 2. When plaintiff arrived at the jail, 9 he had to be transported to the hospital for his injuries to be treated before he could be medically 10 11 cleared for jail. Id. It is unclear precisely what plaintiff is requesting by way of subpoena of the non- 12 party CDCR and how securing the documentation he evidently seeks could be relevant 13 information “reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. 14 P. 26(b)(1). To the extent his purpose can be discerned it appears not to be significantly related 15 to the defendants who are in this action. In any case a subpoena must conform to the 16 requirements of Fed. R. Civ. P. 45. This motion will be denied. 17 Plaintiff’s Renewed Motions for Appointment of Counsel 18 Plaintiff has previously been informed that the United States Supreme Court has 19 ruled that district courts lack authority to require counsel to represent indigent prisoners in 20 § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain 21 exceptional circumstances, the court may request the voluntary assistance of counsel pursuant to 22 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 23 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). Plaintiff’s initial request for appointment 24 of counsel in the instant case was denied because plaintiff had exhibited sufficient knowledge 25 about his case such that the undersigned found appointment of counsel not to be warranted. See 26 Order, filed on December 2, 2011. In the present case, as defendants point out, the issues are 3 1 relatively straightforward. See response to motion for appointment of counsel, filed on March 2 20, 2012 (docket # 33). This court does not find that the requisite exceptional circumstances are 3 present. 4 Accordingly, IT IS ORDERED that: 5 1. Plaintiff’s motion to compel defendants to answer deposition questions, filed 6 on February 17, 2012 (docket # 34), is denied; 7 8 2. Plaintiff’s motion for an order compelling discovery, filed on March 12, 2012 (docket # 37), is denied; and 9 3. Plaintiff’s request for appointment of counsel, filed on February 17, 2012 10 (docket # 33), and amended motion to appoint counsel, filed on March 12, 2012 (docket # 36), 11 are denied. 12 DATED: April 23, 2012 13 14 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE GGH:009 fraz1351.ord5 15 16 17 18 19 20 21 22 23 24 25 26 4

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