Massie v. Amaya et al

Filing 36

ORDER signed by Magistrate Judge Kendall J. Newman on 10/4/13 ORDERING that Plaintiffs motion for discovery 27 is DENIED; Plaintiffs motion for the appointment of counsel 30 is DENIED without prejudice; and Plaintiffs motion for extension of the pretrial motions deadline 29 is DENIED without prejudice to its renewal within twenty-one days from the date of this order, as set forth above. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SCOTT MASSIE,

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Plaintiff,

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No. 2:12-cv-0525 KJN P

v.

ORDER

ARIK AMAYA, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se in an action brought under 42 U.S.C. § 1983.

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Plaintiff’s motion for discovery, motion for appointment of counsel, and motion for extension of

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time to file pretrial motions are before the court. As set forth below, plaintiff’s motions are

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denied.

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Discovery Motion

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In his motion for discovery, plaintiff seeks an in camera review of defendants’ personnel

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records for prior complaints of excessive force, assault, collusion, conspiracy, false testimony,

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habits and customs. Defendants object that plaintiff’s motion is untimely, and that, in any event,

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contend there are no documents responsive to the request in possession or control of defendants.

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(ECF No. 28 at 2; 28-1 at 12.) Defendants contend that plaintiff’s reference to the taser report is

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unavailing because the taser report was written by former defendant Walker, who is now

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deceased, and has no bearing on responding defendants’ verified response to discovery that there
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are no documents regarding prior excessive force complaints. (ECF No. 28 at 2.) In reply,

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plaintiff appears to contend that because defendants only recently provided plaintiff with copies

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of his medical records, that discovery is still being exchanged, and therefore defendants’

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contention that plaintiff’s motion is untimely is unfounded. Plaintiff claims that the taser report is

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consistent with plaintiff’s allegations in the amended complaint, and that the responding

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defendants’ responses are inconsistent.

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In this court’s February 4, 2013 scheduling order, the parties were informed that discovery

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may be conducted until May 24, 2013, and that all motions necessary to compel discovery must

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be filed by that date. (ECF No. 22 at 6.) Under the mailbox rule, the instant motion was filed on

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July 30, 2013, long after the discovery deadline expired. Thus, plaintiff’s discovery motion is

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untimely. However, even if plaintiff’s motion was timely, it is without merit in the face of

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defendants’ verified response that they have no such documents. To the extent plaintiff believes

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the taser report substantiates plaintiff’s claims, and rebuts the responding defendants’ claims,

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plaintiff may seek to introduce the taser report at trial for that purpose.

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In light of the above, plaintiff’s motion is denied.
Motion for Appointment of Counsel

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In addition, plaintiff requests that the court appoint counsel. District courts lack authority

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to require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States

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Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an

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attorney to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v.

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Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36

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(9th Cir. 1990). When determining whether “exceptional circumstances” exist, the court must

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consider plaintiff’s likelihood of success on the merits as well as the ability of the plaintiff to

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articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v.

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Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to

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appoint counsel). The burden of demonstrating exceptional circumstances is on the plaintiff. Id.

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Circumstances common to most prisoners, such as lack of legal education and limited law library

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access, do not establish exceptional circumstances that warrant a request for voluntary assistance
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of counsel.
Having considered the factors under Palmer, the court finds that plaintiff has failed to

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meet his burden of demonstrating exceptional circumstances warranting the appointment of

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counsel at this time.

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Motion for Extension of Pretrial Motions Deadline

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Finally, plaintiff seeks an extension of the August 30, 2013 deadline for filing pretrial

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motions. Plaintiff states that he needs an additional thirty days because some security issues at

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the La Palma Prison make it difficult for plaintiff to attend the law library. However, plaintiff

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fails to identify the nature of the pretrial motion he seeks to file.

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The Cruel and Unusual Punishments Clause of the Eighth Amendment protects prisoners

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from the use of excessive physical force. Wilkins v. Gaddy, 130 S. Ct. 1175, 1178 (2010) (per

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curiam); Hudson v. McMillian, 503 U.S. 1, 8-9 (1992). What is necessary to show sufficient

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harm under the Eighth Amendment depends upon the claim at issue, with the objective

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component being contextual and responsive to contemporary standards of decency. Hudson, 503

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U.S. at 8 (quotation marks and citations omitted). For excessive force claims, the core judicial

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inquiry is whether the force was applied in a good-faith effort to maintain or restore discipline, or

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maliciously and sadistically to cause harm. Wilkins, 130 S. Ct. at 1178 (citing Hudson, 503 U.S.

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at 7) (quotation marks omitted).

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In determining whether the use of force was wanton and unnecessary, courts may evaluate

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the extent of the prisoner's injury, the need for application of force, the relationship between that

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need and the amount of force used, the threat reasonably perceived by the responsible officials,

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and any efforts made to temper the severity of a forceful response. Hudson, 503 U.S. at 7

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(quotation marks and citations omitted).

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In the instant action, plaintiff alleges defendants used excessive force in their efforts to

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remove plaintiff from his cell and transport him to court for his arraignment. At trial, the jury

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will be charged with, inter alia, determining whether defendants hit plaintiff too many times with

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their batons in their efforts to remove him from his cell, and whether defendants hit plaintiff after

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he was under control. These material disputes of fact preclude entry of summary judgment for
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either party at this time. However, in an abundance of caution, the court will deny plaintiff’s

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motion without prejudice to its renewal twenty-one days from the date of this order. Any

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renewed motion for extension shall be accompanied by the proposed pretrial motion.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for discovery (ECF No. 27) is denied;

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2. Plaintiff’s motion for the appointment of counsel (ECF No. 30) is denied without

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prejudice; and
3. Plaintiff’s motion for extension of the pretrial motions deadline (ECF No. 29) is denied

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without prejudice to its renewal within twenty-one days from the date of this order, as set forth

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above.

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Dated: October 4, 2013

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