Green v. CDCR et al

Filing 58

ORDER signed by Magistrate Judge Allison Claire on 10/12/2018 CONSTRUING 57 Defendants' request as a Renewed Motion to Compel Plaintiff's Deposition and For Sanctions and ORDERING Clerk to designate it as such on the docket; GRANTING 57 Motion to compel Plaintiff's Deposition; and DENYING without prejudice 67 Motion for Monetary Sanctions. Defendants to inform Plaintiff of his rescheduled deposition at least 14 days in advance. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WARREN C. GREEN,

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Plaintiff,

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No. 2:14-cv-2854 TLN AC P

v.

ORDER

CDCR, et al.,

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Defendants.

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

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action alleging deliberate indifference to his serious medical needs by defendants Church,

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Williamson, Li, Minn and Akintola. Defendants have filed a “Request for Order on Motion to

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Compel Plaintiff’s Deposition.” ECF No. 57. The request seeks a ruling on defendants’ motion

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to compel filed May 14, 2018. ECF No. 48. The undersigned denied that motion without

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prejudice on May 17, 2018, ECF No. 50, pending the district judge’s decision on defendants’

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motion to revoke plaintiff’s in forma pauperis status. That matter has now been decided.

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The instant request is construed as a renewed motion to compel plaintiff’s deposition and

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for monetary sanctions. For the reasons set forth below, the motion to compel is granted but the

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motion for sanctions is denied without prejudice, subject to plaintiff’s full cooperation with his

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rescheduled deposition.

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Review of defendants’ original motion and exhibits thereto demonstrate that plaintiff

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expressly refused to participate in his April 19, 2018 deposition without legal representation. See

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ECF No. 48-1 at 12-8 (transcript of attempted deposition). Although plaintiff appeared at the

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time and place scheduled for his deposition, he refused to be sworn in by the court reporter or

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answer any substantive questions solely because he was not represented by counsel. Id. at 17.

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Plaintiff was appointed counsel in this action for the limited purpose of drafting the

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operative Third Amended Complaint. See ECF Nos. 25-7. Appointment of counsel was

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terminated August 22, 2017, at the request of counsel, ECF No. 27, and plaintiff did not request

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further appointment. As the court then explained, district courts do not have authority to require

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attorneys to represent indigent prisoners in Section 1983 cases. Mallard v. United States District

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Court, 490 U.S. 296, 298 (1989). A district court may only request the voluntary assistance of

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

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1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). Only a limited number of

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attorneys is available to voluntarily represent indigent prisoners. Therefore, appointment of

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counsel is appropriate only under “exceptional circumstances” that include a plaintiff’s likelihood

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of success on the merits of his claims together with an inability to articulate his claims pro se.

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Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Circumstances common to most prisoners,

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

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circumstances. Id. When plaintiff’s previously appointed counsel was terminated, the court

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found that plaintiff had not met his burden of demonstrating exceptional circumstances

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warranting the appointment of new counsel. See ECF No. 27. The same conclusion continues to

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apply and the court will not, under the present circumstances, consider a new motion for

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appointment.

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Defendants’ motion is made pursuant to Rule 37, Federal Rules of Civil Procedure.

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Under Rule 37(a)(3)(C), a party may move to compel another party to answer questions at his

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deposition; if the motion is granted, the movant may be entitled to reimbursement of his

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reasonable expenses, see Rule 37(a)(5)(A). Similarly, under Rule 37(d), a party who fails to

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attend his deposition may be required to pay the movant’s reasonable expenses. A broader range
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of sanctions, including dismissal of an action, is authorized under Rule 37(b) if a party fails to

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comply with a court order. See Fed. R. Civ. P. 37(b)(1) (failure to abide by court order directing

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cooperation with deposition may be treated as contempt of court); Fed. R. Civ. P. 37(b)(2)(A)

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(range of sanctions include dismissal of action in whole or part).

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Having commenced this action, plaintiff is required to fully participate in all stages of the

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proceedings. Defendants aver that the only outstanding discovery is plaintiff’s deposition. The

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extended discovery deadline is February 1, 2019. See ECF No. 56. It would be fundamentally

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unfair and prejudicial to defendants to permit plaintiff to continue to pursue this action without

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requiring his attendance and cooperation at his deposition.

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For these reasons, defendants’ motion to compel plaintiff’s deposition will be granted,

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subject to proper notice at least fourteen days in advance.1 Plaintiff is directed to appear at his

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rescheduled deposition and to fully cooperate in answering all questions to the best of his ability.

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Should plaintiff fail to so cooperate, the undersigned will, upon proper motion, recommend to the

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district judge this action be dismissed due to plaintiff’s failure to prosecute and failure to abide to

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the rules and orders of this court. See Fed. R. Civ. P. 11, 41(b); see also Local Rule 110.

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Defendants’ motion for monetary sanctions ($587.50), reflecting reimbursement of

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defendants’ expenses in convening plaintiff’s first attempted deposition, will be denied without

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prejudice. Although defendants invested substantial time and expense in scheduling plaintiff’s

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initial deposition, obtaining a court reporter, and pursuing a motion to compel in this court,

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awarding monetary sanctions at this time would not further the interests of justice due to

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plaintiff’s in forma pauperis status. However, if plaintiff fails to participate in his newly

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scheduled deposition, the court may reconsider this matter.

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This court’s discovery and scheduling orders provide: “Pursuant to Federal Rule of Civil
Procedure 30(a), defendants may depose, either in person or by videoconference, plaintiff and any
other witness confined in a prison upon condition that, at least fourteen days before such a
deposition, defendants serve all parties with the notice required by Fed. R. Civ. P. 30(b)(1).” See
ECF No. 38 at 5; ECF No. 56 at 5.
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Accordingly, IT IS HEREBY ORDERED that:

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1. Defendants’ request, ECF No. 57, is construed as a renewed motion to compel

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plaintiff’s deposition and for sanctions; the Clerk of Court shall so designate on the docket.
2. Defendants’ motion to compel plaintiff’s deposition is GRANTED; defendants shall
inform plaintiff of his rescheduled deposition at least fourteen (14) days in advance.

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3. Defendants’ motion for monetary sanctions is DENIED without prejudice.

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4. Failure of plaintiff to appear at his deposition and fully cooperate in answering

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defendants’ questions will, upon proper motion, result in a recommendation this action be

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dismissed due to plaintiff’s failure to prosecute and failure to abide by the rules and orders of this

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court. See Fed. R. Civ. P. 11, 41(b); Local Rule 110.
SO ORDERED.
DATED: October 12, 2018

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