Jamison v. Gummi et al

Filing 82

ORDER signed by Magistrate Judge Allison Claire on 03/24/15 ordering the documents 71 , 72 , and 73 are disregarded. Plaintiff's motion for the appointment of counsel 78 , 81 are denied. Plaintiff's motion to compel 78 is denied. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JEREMY JAMISON,

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No. 2:13-cv-1705 AC P

Plaintiff,
v.

ORDER

SAMBRAJYA PALAGUMMI,
Defendant.

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Plaintiff is proceeding pro se and in forma pauperis in this action under 42 U.S.C. § 1983.

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Both parties have consented to the jurisdiction of the magistrate judge. ECF Nos. 6, 21.

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Currently before the court are plaintiff’s (1) documents in support of request for emergency

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injunction (ECF No. 71); (2) motion to support request for emergency injunction (ECF No. 72);

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(3) motion to submit documents (ECF No. 73); (4) motion for assistance of counsel to conduct a

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deposition and to compel defendant to be present at deposition (ECF No. 78); and (5) motion for

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assistance of counsel at trial (ECF No. 81).

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Based upon plaintiff’s certificates of service, it appears the documents filed at ECF Nos.

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71-73 were mailed prior to plaintiff’s receipt of the January 5, 2015 order denying his requests for

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preliminary injunction (ECF No. 70). It therefore appears that these documents were intended to

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supplement his previous requests (ECF Nos. 63, 64, 66). The arguments and documents

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submitted offer nothing new and do not change the court’s previous analysis of plaintiff’s

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requests for preliminary injunction. Accordingly, the court will disregard the documents at ECF

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Nos. 71-73.

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Plaintiff has also requested the appointment of counsel to assist him with conducting a

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deposition and trial. ECF Nos. 78, 81. The United States Supreme Court has ruled that district

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courts lack authority to require counsel to represent indigent prisoners in § 1983 cases. Mallard

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v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the

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court may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell

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v. 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). In the present case, the court does not find the required exceptional

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circumstances. Additionally, the time for conducting depositions has passed and any requests

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related to trial are premature, as a trial has yet to be scheduled. Plaintiff’s requests for the

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appointment of counsel will therefore be denied.

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Finally, plaintiff seeks an order compelling defendant “to be present at the deposition and

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answer all questions.” ECF no. 78 at 1. There is no evidence that plaintiff has attempted to

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depose defendant or that defendant has refused to be deposed, and it appears that plaintiff may be

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seeking the court’s assistance in arranging defendant’s deposition.

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“A party who wants to depose a person by oral questions must give reasonable written

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notice to every other party.” Fed. R. Civ. P. 30(b)(1). “The party who notices the deposition

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must state in the notice the method for recording the testimony.” Fed. R. Civ. P. 30(b)(3)(A).

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The noticing party must also bear costs of recording the deposition. Id. In addition, that party

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must arrange for an officer to conduct the depositions (absent a stipulation by all parties

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otherwise). Fed. R. Civ. P. 30(b)(5)(A). To the extent he is seeking it, plaintiff does not require

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the court’s permission to take defendant’s deposition and the court cannot order defendant to

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arrange for plaintiff to take her deposition. Additionally, as defendant points out, the time for

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discovery and motions to compel has passed (ECF No. 42), making plaintiff’s motion untimely.

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Plaintiff’s argument that good cause exists because he was hospitalized and subsequently

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housed at a county facility from May to September 2014, is unconvincing, especially in light of

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the various requests for preliminary injunction filed after his return to state custody and prior to
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the discovery deadline (ECF Nos. 63, 64, 66). The fact that plaintiff “spent the remainder of the

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summer of 2014 fighting his criminal case” does not excuse him from his obligations in this case,

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and he fails to offer any explanation as to why he was unable to at least file a timely motion to

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extend the deadlines if such an extension was necessary. ECF No. 80. For these reasons, the

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court will deny plaintiff’s motion to compel.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The documents at ECF Nos. 71, 72, and 73 are disregarded.

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2. Plaintiff’s motions for the appointment of counsel (ECF Nos. 78, 81) are denied.

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3. Plaintiff’s motion to compel (ECF No. 78) is denied.

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DATED: March 24, 2015

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