Callender v. Ramm et al

Filing 47

ORDER signed by Magistrate Judge Allison Claire on 12/10/18 GRANTING 38 Motion to Compel; DENYING 39 Motion to Appoint Counsel; and DENYING 40 Motion to Compel. Within 30 days from the date of this order plaintiff is DIRECTED to provide the following to defendants: The declaration of inmate Eric Jones dated 1/25/17; The declaration of inmate James Logan dated 1/26/17; and Form 104 Property and Cash receipt dated 5/11/16. (Coll, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

VINCENT ANTHONY CALLENDER,

12

No. 2:16-cv-0694 JAM AC P

Plaintiff,

13

v.

14

J. RAMM, et al.,

15

ORDER

Defendants.

16
Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed this civil

17
18

rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States

19

Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
Pending before the court are defendants’ motion to compel production of documents (ECF

20
21

No. 38), plaintiff’s motion to appoint counsel (ECF No. 39), and plaintiff’s motion to compel

22

discovery (ECF No. 40). For the reasons stated below, defendants’ motion will be granted and

23

plaintiff’s motions will be denied.

24

I.

25

DEFENDANTS’ MOTION TO COMPEL
Defendants seek an order requiring plaintiff to produce the following documents: (1) the

26

declaration of inmate Eric Jones, dated January 25, 2017; (2) the declaration of inmate James

27

Logan, dated January 26, 2017, and (3) Form 104 Property and Cash receipt, dated May 11, 2016.

28

See ECF No. 38 at 3-5. Defendants aver that these documents come within the scope of the
1

1

request for production of documents that was made in relation to plaintiff’s deposition, and that

2

plaintiff testified at his deposition that he possessed the documents. The deposition was

3

conducted via teleconference, and plaintiff refused defendants’ request that the documents be

4

photocopied by correctional staff during the deposition. See ECF No. 38 at 3-6.

5

Plaintiff’s objections to producing these documents are overruled. Plaintiff may not

6

withhold from defendants’ evidence that is relevant to his claims and proportional to the needs of

7

the case. Fed. R. Civ. P. 26(b)(1). Plaintiff may satisfy his obligation of production in either of

8

two ways. If he believes that the requested documents are pertinent to the pending motion for

9

summary judgment (ECF No. 42), he may submit them in opposition. Otherwise, he must serve

10

them on defendants within 30 days of today’s date, the same day that his opposition to summary

11

judgment is due. See ECF No. 46 (order directing response to summary judgment motion). All

12

three requested documents must be provided in one of these two ways.

13

II.

PLAINTIFF’S MOTION TO COMPEL

14

Plaintiff seeks the following documents:

15

1.

Any and all custodial records of any citizen complaints.

2.

Any and all records of inmate complaint of physical abuse.

3.

Any and all records of inmate complaints of racial discrimination.

16
17
18

21

11. Any and all record of CDCR Form 104 (Property and Cash Receipts –
Arrival) of inmate(s) which corresponds with each inmate and plaintiff(s) [sic]
complaint of missing, destruction, physical abuse, racial discrimination, moral
turpitude, complaints of retaliation, and failure of performance of their duties in
between the years of 1-1-2013 to 1-1-2017.

22

12.

23

13. Any and all records of disciplinary actions by CDCR Administrative Agency
in which the defendant(s) has been disciplined for or put on a probationary period
due to the defendant(s) either . . . failure of performance of duties, physical abuse,
racial discrimination, moral turpitude, retaliation, displacement of an inmates [sic]
property, or the intentional displacement of an inmates [sic] property, on any
occasion while the defendants were on any assigned watch first, second or third
while being employed by CDCR as an [sic] correctional officer.

19
20

24
25
26
27
28

14.

Any and all records of misconduct by defendants.

Any and all Department of Operations Manual Section cites upon which
2

1
2

corresponds with [sic] the procedures in the performance of the duties as an [sic]
CDCR correctional officer must, shall and are legally obligated to perform under
D.O.M. Section Article 43 – Inmates Property.

3
4
5
6
7
8
9
10
11
12
13

ECF No. 40 at 4-5 (brackets added) (omission of Request Nos. 4-10 in original).
Federal Rule of Civil Procedure 26(b)(1) establishes the scope of discovery. It states in
relevant part:
Parties may obtain discovery regarding any nonprivileged matter that
is relevant to any party’s claim or defense and proportional to the
needs of the case, considering the importance of the issues at stake
in the action, the amount in controversy, the parties’ relative access
to relevant information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or expense
of the proposed discovery outweighs its likely benefit. Information
within this scope of discovery need not be admissible in evidence to
be discoverable.
Fed. R. Civ. P. 26(b)(1).
This case proceeds on plaintiff’s claims that defendants Ramm and Sesnaros conspired to

14

violate, and did violate, his right of access to the court by destroying his legal documents and

15

papers. See ECF No. 19 (screening order) at 3-4, 6-7. Citizen complaints, and inmate complaints

16

of physical abuse, racial discrimination, moral turpitude, and failure of performance of duties are

17

not relevant to these claims and are therefore not discoverable.

18

Plaintiff has also failed to establish the relevance of (1) all inmate property inventory

19

forms filed by defendants over a three-year period; (2) records related to misconduct by

20

defendants and the discipline of defendants, and (3) complaints by other inmates related to

21

personal property destruction, missing property, retaliation, and failure of performance of duties.

22

This sort of evidence would be inadmissible on the question whether defendants intentionally

23

destroyed plaintiff’s property and/or denied plaintiff access to the courts. See Fed. R. Evid.

24

404(b) (stating evidence of wrong or other act not admissible to prove person’s character to show

25

that on particular occasion the person acted in accordance with character). Even if such

26

documents could theoretically be relevant, the undersigned finds that their production is

27

disproportionate to the needs of this case.

28
3

1

As to plaintiff’s request for pertinent sections of the Department of Operations Manual, it

2

appears that defendants have provided this information. See ECF No. 40 at 2 (indicating that

3

Article 43 – Inmate Property is only item defendants have proffered to date in response to

4

plaintiff’s discovery requests).

5
6

For all these reasons, plaintiff’s motion to compel (ECF No. 40) will be denied.
III.

PLAINTIFF’S MOTION TO APPOINT COUNSEL

7

A.

8

Plaintiff requests the appointment of counsel on grounds that he “is unlearned in the law,”

Plaintiff’s Argument

9

only has a G.E.D. (general equivalency degree), is indigent, cannot afford to obtain counsel, and

10

has been unable to gather evidence “that only an attorney can obtain through cooperation.” See

11

ECF No. 39 at 1.

12

District courts lack authority to require counsel to represent indigent prisoners in section

13

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

14

circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28

15

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

16

Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional

17

circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as

18

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

19

legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (stating same and

20

concluding district court did not abuse discretion in declining to appoint counsel). The burden of

21

demonstrating exceptional circumstances is on the plaintiff. Id.

22

Having considered both plaintiff’s arguments and the governing law, including all

23

authorities offered by plaintiff, the court concludes that appointment of counsel is not appropriate

24

in this case. The law is clear: neither plaintiff’s indigence, nor his lack of education, nor his lack

25

of legal expertise warrant the appointment of counsel. See Wood, 900 F.2d at 1335-36; see also

26

Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984) (finding court was within its discretion

27

when it denied appointment of counsel to sixty-year old appellant proceeding in forma pauperis

28

with no background in law who thoroughly presented issues in petition).
4

1

The issues in this case are not terribly complex. Plaintiff has clearly shown that he is

2

capable of adequately litigating this matter and expressing his thoughts and concerns. At no point

3

throughout these proceedings has the court been uncertain of either the substance of plaintiff’s

4

claims or of his litigation concerns. For these reasons, the court finds that exceptional

5

circumstances which warrant the appointment of counsel do not exist. Therefore, the motion

6

(ECF No. 39) will be denied.

7

Accordingly, IT IS HEREBY ORDERED that:

8

1. Defendants’ motion to compel (ECF No. 38) is GRANTED;

9

2. Plaintiff shall provide the following documents either as attachments to his opposition

10

to defendants’ motion for summary judgment, or by separate service on defendants no

11

later than 30 days from the effective date of this order:

12

a. The declaration of inmate Eric Jones, dated January 25, 2017;

13

b. The declaration of inmate James Logan, dated January 26, 2017; and

14

c. Form 104 Property and Cash receipt, dated May 11, 2016;

15

3. Plaintiff’s motion to compel (ECF No. 40) is DENIED; and

16

3. Plaintiff’s motion to appoint counsel (ECF No. 39) is DENIED.

17

DATED: December 10, 2018

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