Frazier v. Redding Police Department et al

Filing 53

ORDER signed by Magistrate Judge Gregory G. Hollows on 4/27/12 ORDERING that plaintiffs April 23, 2012 48 , motion for appointment of counsel is DENIED; and Plaintiffs motion for a stay of discovery, i.e., that his deposition be postponed or continued, filed on April 23, 2012 51 , is denied and plaintiff must appear for his deposition on May 3, 2012; failure to do so may result in dismissal of this action. (Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MATTHEW LUCAS FRAZIER,
Plaintiff,

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No. CIV S-11-1351 GGH P

vs.
REDDING POLICE DEPT., et al.,
Defendants.

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ORDER
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil

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rights action. On April 23, 2012, plaintiff filed another motion for the appointment of counsel

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(docket # 48) and also filed a motion for his deposition to be postponed.1 Docket # 51.

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Defendants oppose delaying the deposition, now scheduled for May 3, 2012. Docket # 52.

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Plaintiff’s objection to being deposed at this time is predicated on his concern that he might be

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asked questions which could have criminal implications for him. Docket # 51. Plaintiff states

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that he did not testify in his criminal case and that the criminal matter is related to the incident at

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issue in this civil rights action (claims by plaintiff of the use of excessive force against him by

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defendants). Id. Plaintiff, who since the initial filing of his complaint, has evidently sustained a

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Other pending motions will be addressed by separate order.
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criminal conviction and is now serving a sentence at Pleasant Valley State Prison, states that his

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conviction is on appeal. Id. He asks that his deposition be continued until the court reconsiders

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his request for appointment of counsel, at a minimum to represent him at his deposition.

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However, plaintiff's previous requests were denied by orders filed on December 2, 2011, and on

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April 23, 2012. The requests were denied because the court did not find the requisite exceptional

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

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900 F.2d 1332, 1335-36 (9th Cir. 1990), and because plaintiff has exhibited sufficient knowledge

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about his case and the issues of the case are relatively straightforward. Those circumstances have

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not altered and, therefore, plaintiff’s most recent request for appointment of counsel will also be

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denied.
As to plaintiff’s request that his deposition be delayed, the Ninth Circuit has noted

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that the Fifth Amendment privilege against self-incrimination has long been recognized by the

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United States Supreme Court as applying “alike to civil and criminal proceedings, wherever the

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answer might tend to subject to criminal responsibility him who gives it.” Campbell v. Gerrans,

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592 F.2d 1054, 1057, citing McCarthy v. Arndstein, 266 U.S. 34, 40, 45 S.Ct. 16, 17 [] (1924);

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see also, Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1263 (9th Cir. 2000), citing

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Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973)(Fifth Amendment not

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only protects witness from compelled self-incrimination in a criminal prosecution “but also

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privileges him not to answer official questions put to him in any other proceeding, civil or

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criminal, formal or informal, where the answers might incriminate him in future criminal

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proceedings.”). However, “the Fifth Amendment does not forbid adverse inferences against

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parties to civil actions when they refuse to testify in response to probative evidence offered

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against them.... .” Baxter v. Palmigiano, 425 U.S. 308, 96 S. Ct. 1551, 1558 (1976).

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Assuming that this civil action and his criminal matter on appeal are related, if

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plaintiff’s criminal trial were pending at this time, the court would grant plaintiff’s motion for a

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stay of the discovery proceedings. However, as plaintiff has already been convicted in the
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criminal matter and is serving a sentence at this point, the court finds there to be an insufficient

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basis for a stay of plaintiff’s civil litigation. Plaintiff must proceed to his deposition, which was

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evidently properly noticed (docket # 52), or risk dismissal of this action.

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Accordingly, IT IS ORDERED that:

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1. Plaintiff’s April 23, 2012 (docket # 48), motion for appointment of counsel is

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denied; and
2. Plaintiff’s motion for a stay of discovery, i.e., that his deposition be postponed

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or continued, filed on April 23, 2012 (docket # 51), is denied and plaintiff must appear for his

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deposition on May 3, 2012; failure to do so may result in dismissal of this action.

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DATED: April 27, 2012

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/s/ Gregory G. Hollows
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GREGORY G. HOLLOWS
UNITED STATES MAGISTRATE JUDGE

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G G H :009
fraz1351.ord

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