McMurtry v. Hu, et al

Filing 38

ORDER signed by Magistrate Judge Dale A. Drozd on 4/28/2014 DENYING plaintiff's 29 motion to compel discovery and reguest for appointment of counsel ; DENYING plaintiff's 25 request for appointment of counsel, without prejudice; GRANT ING defendants' 37 request for clarification; and defendants' 32 motion to dismiss due to plaintiff's alleged failure to exhaust administrative remedies prior to filing suit is DENIED without prejudice to the filing of a motion for summary judgment in accordance with the Ninth Circuit decision in Albino within thirty days. (Yin, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

CHARLEY McMURTRY,

12

Plaintiff,

13
14
15

No. 2:12-cv-00103 DAD P

v.

ORDER

HU, et al.,
Defendants.

16
17

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

18

action pursuant to 42 U.S.C. § 1983. This proceeding was referred to the undersigned by Local

19

Rule 302 pursuant to 28 U.S.C. § 636(b)(1). Before the court is plaintiff’s motion to compel

20

discovery, plaintiff’s request for the appointment of counsel, and defendants’ request for

21

clarification as to how the court intends to proceed with their pending motion to dismiss brought

22

pursuant to Federal Rule of Civil Procedure 12(b) due to plaintiff’s alleged failure to exhaust

23

administrative remedies prior to filing suit.
PLANITFF’S MOTION TO COMPEL

24
25
26

I. Plaintiff's Motion
In his motion to compel the production of documents, plaintiff argues that defendants

27

have refused to produce requested documents which, according to him, “places an undue burden

28

of plaintiff’s prosecution of the lawsuit.” (ECF No. 29 at 1-2.) Plaintiff does not specify in his
1

1

motion which documents defendants failed to produce and instead merely attaches a copy of

2

defendants’ discovery responses to his motion and asserts vaguely that “pertinent documents have

3

been witheld [sic] in bad faith.” (Id. at 2.) Plaintiff also disagrees with defendants’ discovery

4

responses in which they object by stating that his discovery requests are “overbroad, compound,

5

irrelevant, readily available to plaintiff, or would create a hazard to the safety of the security of

6

the institution[.]” (Id. at 3.)

7

II. Defendants' Opposition
Defendants Hu and Gebrezghi have filed an opposition to plaintiff’s motion to compel.

8
9

Therein, they contend that they provided timely responses to plaintiff’s discovery requests and, in

10

addition, provided over two hundred pages of medical documents in supplemental responses to

11

those requests. (ECF No. 30 at 1.) Defendants argue that plaintiff has not identified which of

12

their responses are deficient, explained why their objections to specific discovery requests were

13

not justified, nor has plaintiff show why the information he seeks through discovery is relevant to

14

this action. (Id. at 3.) Defendants assert that they have properly responded to plaintiff’s

15

discovery requests and have also produced plaintiff’s inmate grievance relating to the incident at

16

issue. (Id. at 4.) Finally, defendants assert that their discovery responses are not deficient and

17

that plaintiff has merely alleged in conclusory fashion that the documents he seeks “’are not

18

overbroad, compound, irrelevant, readily available to Plaintiff, or would create a hazard to the

19

safety of the security of the institution.’” (Id.) Defendants argue that plaintiff’s bald assertion in

20

this regard fails to satisfy his burden to provide specific arguments in support of his motion to

21

compel. (Id.)

22

III. Discussion
Under the Federal Rules of Civil Procedure, “[p]arties may obtain discovery regarding any

23
24

non-privileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b).

25

Under Rule 37 of the Federal Rules of Civil Procedure, the court may order a party to provide

26

further responses to “an evasive or incomplete disclosure, answer, or response.” See Fed. R. Civ.

27

P. 37(a)(3).

28

/////
2

1

Here, the court will not order defendants to provide further responses to plaintiff’s request

2

for production of documents. Defendants have produced over two hundred pages of medical

3

documents in response to plaintiff’s discovery request and have advised plaintiff that the

4

operations manual which provides the policies and procedures plaintiff requests is available to

5

him in the prison law library. Although the court does not hold litigants proceeding pro se to the

6

same standards that it holds attorneys, at a minimum, as the moving party with respect to the

7

pending motion to compel, plaintiff has the burden of informing the court why he believes the

8

defendants’ discovery responses are deficient, why the defendants’ objections to some of his

9

requests are not justified, and why the additional documents he seeks through discovery is

10

relevant to his prosecution of this action. See, e.g., Brooks v. Alameida, No. CIV S-03-2343

11

JAM EFB P, 2009 WL 331358, at *2 (E.D. Cal. Feb. 10, 2009) (“Without knowing which

12

responses plaintiff seeks to compel or on what grounds, the court cannot grant plaintiff’s

13

motion.”), report and recommendation adopted by 2009 WL 807498 (E.D. Cal. Mar. 26, 2009);

14

Ellis v. Cambra, No. CIV F-02-5646 AWI SMS PC, 2008 WL 860523, at *4 (E.D. Cal. Mar. 27,

15

2008) (“Plaintiff must inform the court which discovery requests are the subject of his motion to

16

compel, and, for each disputed response, inform the court why the information sought is relevant

17

and why Defendant’s objections are not justified.”).

18

Here, plaintiff has provided no specific arguments in support of his motion to compel but

19

rather, is essentially asking the court to make his arguments for him. The court will not examine

20

each of plaintiff’s discovery requests and each of the defendants’ responses thereto in order to

21

determine whether any of the defendants’ responses are somehow deficient. It is plaintiff’s

22

burden to describe why the defendants’ particular discovery responses were inadequate. See, e.g.,

23

Williams v. Flint, No. CIV S 06-1238 FCD GGH P, 2007 WL 2274520, at *1 (E.D. Cal. Aug. 6,

24

2007) (“It is plaintiff’s burden to describe why a particular response is inadequate. It is not

25

enough to generally argue that all responses are incomplete.”).

26
27
28

PLAINTIFF’S REQUEST FOR THE APPOINTMENT OF COUNSEL
Within his motion to compel plaintiff has also requested the appointment of counsel. The
United States Supreme Court has ruled that district courts lack authority to require counsel to
3

1

represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296,

2

298 (1989). In certain exceptional circumstances, the district court may request the voluntary

3

assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017

4

(9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). The test for

5

exceptional circumstances requires the court to evaluate the plaintiff’s likelihood of success on

6

the merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity

7

of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986);

8

Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances common to most prisoners,

9

such as lack of legal education and limited law library access, do not establish exceptional

10

circumstances that would warrant a request for voluntary assistance of counsel. In the present

11

case, the court does not find the required exceptional circumstances at this time. Accordingly,

12

plaintiff’s request for the appointment of counsel will be denied.

13

DEFENDANTS’ MOTION TO DISMISS

14

On February 10, 2014, defendants Gebrezghi and Hu filed a motion to dismiss the

15

complaint for plaintiff's failure to exhaust his administrative remedies before initiating this action.

16

That motion was brought pursuant to Federal Rule of Civil Procedure 12(b). On April 4, 2014,

17

defendants filed a notice with the court requesting clarification as to how the court intends to

18

proceed with respect to their pending motion to dismiss.

19

On April 3, 2014, the United States Court of Appeals for the Ninth Circuit overruled the

20

decision in Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), with respect to the proper

21

procedure for seeking pretrial resolution of an affirmative defense on the basis of an alleged

22

failure to comply with the administrative exhaustion requirement. See Albino v. Baca, ___ F.3d

23

___, 2014 WL 1317141 at *1 (9th Cir. 2014) (en banc). Under the decision in Albino, a

24

defendant may raise the issue of proper exhaustion in either (1) a motion to dismiss brought

25

pursuant to Rule 12(b)(6), in the rare event the failure to exhaust is clear on the face of the

26

complaint, or (2) a motion for summary judgment. Id. at *4 (quotation marks omitted). An

27

unenumerated Rule 12(b) motion is no longer the proper procedural device for raising the issue of

28

exhaustion. Id. Therefore, the defendants’ pending motion to dismiss will be denied without
4

1

prejudice to the filing of a motion for summary judgment in accordance with the decision in

2

Albino.

3

CONCLUSION

4

In accordance with the above, IT IS HEREBY ORDERED that:

5

1. Plaintiff's November 25, 2013 motion to compel discovery and request for appointment

6
7
8
9

of counsel (ECF No. 29) is denied;
2. Plaintiff's November 25, 2013 request for the appointment of counsel (ECF No. 29) is
denied without prejudice;
3. Defendants' April 4, 2014 request for clarification (ECF No. 37) is granted; and

10

4. Defendants' February 10, 2014 motion to dismiss due to plaintiff’s alleged failure to

11

exhaust administrative remedies prior to filing suit (ECF No. 32) is denied without prejudice to

12

the filing of a motion for summary judgment in accordance with the Ninth Circuit decision in

13

Albino within thirty days.

14

Dated: April 28, 2014

15
16
17

DAD:4
mcmu103.mtc

18
19
20
21
22
23
24
25
26
27
28
5