Valadez, Sr. v. Gill, et al.

Filing 52

ORDER signed by Magistrate Judge Allison Claire on 12/29/14 ORDERING that Defendant Wright has discharged the show cause order at ECF No. 34 , and renewed at ECF No. 40 , by his response at ECF No. 41 ; Plaintiffs renewed requests for appointme nt of counsel, ECF Nos. 50 and 51 are denied; The deadlines set forth in the Discovery and Scheduling Order, ECF No. 28 , are hereby vacated; and the discovery deadline is hereby re-set for February 27, 2015. The pretrial dispositive motion deadline is now set for June 26, 2015.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FELIPE VALADEZ, SR.,

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No. 2:13-cv-1532 KJM AC P

Plaintiff,

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v.

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D. GILL, et al.,

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ORDER
Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this action seeking
relief pursuant to 42 U.S.C. § 1983. The court here addresses several outstanding matters/

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Defendant Wright’s Response to Order to Show Cause

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On April 15, 2014 the court ordered defendant C. Wright to show cause why he or she

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should not be found to be in default for not having responded to the complaint, pursuant to Fed.

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R. 12(a)(1)(A), within twenty-one days of service of the summons and complaint. Defendant

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Wright thereafter filed an answer on April 29, 2014 but failed to show cause for the delayed

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responsive pleading. Defendant Wright was again directed to show cause for the tardy filing of

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his answer. See Order filed on May 14, 2014. In a reply filed on May 21, 2014, defendant

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Wright demonstrated cause for the delayed response. The court finds the show cause order

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discharged.

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Plaintiff’s Additional Requests for Appointment of Counsel

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In a Discovery and Scheduling Order (DSO) filed on March 14, 2014, the discovery

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deadline was set as August 15, 2014 and the pretrial dispositive motion deadline was set a

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November 21, 2014. ECF No. 28. On May 28, 2014, plaintiff’s motion for a stay of proceedings

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was denied. See ECF No. 42 (Order adopting Findings and Recommendations, ECF No. 35).

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By order filed on July 21, 2014, plaintiff’s request for reconsideration of orders denying him

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appointment of counsel was denied as untimely. ECF No. 47. Plaintiff made a request to

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continue his deposition and another request for appointment of counsel on September 26, 2014,

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which were denied by order filed on October 6, 2014. ECF No. 49.

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In that order, the court informed plaintiff once again that the United States Supreme Court

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has ruled that district courts lack authority to require counsel to represent indigent prisoners in §

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1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain

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exceptional circumstances, the district court may request the voluntary assistance of counsel

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pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991);

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

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

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

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issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not abuse

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discretion in declining to appoint counsel); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.

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

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

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exceptional circumstances that would warrant a request for voluntary assistance of counsel.

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In denying plaintiff’s repeated request for appointment of counsel, the court stated:

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Plaintiff seeks counsel, stating that he is an “American with a
disability,” has some mobility impairment, and is placed in the
CCCMS level of mental health care. [“The CCCMS level of care is
for inmates whose symptoms are under control or in partial
remission and can function in the general prison population,
administrative segregation, or segregated housing units.” Coleman
v. Schwarzenegger, 922 F. Supp. 2d 882, 903 n. 24 (E.D. Cal.
2009)] Plaintiff has previously been informed that his desire to
have counsel for his deposition and the fact that he takes

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psychotropic medication are not exceptional circumstances
warranting appointment of counsel. ECF No. 30; see also, Order at
ECF No. 35 at 2. Nor does deafness in plaintiff’s left ear require
appointment of counsel. ECF No. 35. Plaintiff’s mobility
impairment and CCCMS placement reflect challenges to which the
court is not insensitive, but pro se inmates frequently have to deal
with challenges of this nature in prosecuting their prisoner civil
rights actions.

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The court has found that the instant complaint states a cognizable
claim for relief as to plaintiff’s claims of the use of excessive force
on two occasions by defendants who are West Sacramento Police
Officers. The court has also previously noted that while it appeared
that plaintiff had a reasonable chance of succeeding on his claims,
the undersigned was unable to evaluate his likelihood of success on
the merits at this point. See ECF Nos. 30, 35. It has also been
observed by this court that the legal issues do not appear to be
complex. Id. The circumstances relevant to these factors have not
changed, and do not support the appointment of counsel.
ECF No. 49 at 2-3.
The circumstances presented in plaintiff’s most recent requests for appointment of counsel
appear to be the same as those previously considered. The requests are denied.

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Plaintiff’s Request Re: New Defendant

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Included in one of his most recent requests for counsel, plaintiff refers in passing to his

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desire to add another West Sacramento police officer by the name of N. Barrio as a defendant.

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ECF No. 50 at 1. Plaintiff has provided no factual allegations implicating this individual in a

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violation of plaintiff’s constitutional rights; he not made his request in the form of a motion for

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leave to amend; and he has not submitted a proposed amended complaint stating any claims

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against N. Barrio. To the extent plaintiff intended to seek leave to amend, the request is denied as

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inadequately supported.

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Plaintiff’s Request Re: Discovery

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Plaintiff also makes a passing reference to wanting the police car video for trial, in order

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to show the defendants “d[e]spicable” behavior toward him. ECF No. 50 at 2. Evidence is not

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generally obtained by court order. If plaintiff wishes to obtain evidence from defendant(s), he

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must serve a request for production upon the defendant(s) pursuant to Fed. R. Civ. P. 34. If

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defendants’ response to the Request for Production is inadequate, plaintiff may file a motion to

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compel production pursuant to Fed. R. Civ. P. 37.

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Amendment Of Discovery and Scheduling Order

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In order to afford plaintiff the opportunity to bring a properly supported motion to compel

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discovery and to accommodate the relatively recent appearance of defendant Wright in this

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action, the court will re-open discovery and extend the deadlines of the DSO as follows: the

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discovery deadline is hereby re-set for February 27, 2015. The pretrial dispositive motion

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deadline is set for June 26, 2015.

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Accordingly, IT IS ORDERED that:

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1. Defendant Wright has discharged the show cause order at ECF No. 34, and renewed at

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ECF No. 40, by his response at ECF No. 41;

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2. Plaintiff’s renewed requests for appointment of counsel, ECF Nos. 50 and 51 are
denied;
3. The deadlines set forth in the Discovery and Scheduling Order, ECF No. 28, are hereby
vacated; and
4. The discovery deadline is hereby re-set for February 27, 2015. The pretrial dispositive

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motion deadline is now set for June 26, 2015.

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DATED: December 29, 2014

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