(PC) Hicks v. Gosai et al

Filing 71

ORDER signed by Magistrate Judge Jeremy D. Peterson on 6/4/2023 GRANTING 61 Motion to Compel, DENYING 62 Motion to Appoint Counsel, DENYING 64 Motion for Sanctions, GRANTING 65 , 67 Motion's to Modify, and DISREGARDING 68 Discovery Request. The deadline to complete discovery is 6/26/24 and file dispositive motions is 9/6/24. (Woodson, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DARYL ANTHONY HICKS,

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Plaintiff,

Case No. 2:20-cv-02303-DJC-JDP (PC)
ORDER

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GRANTING DEFENDANTS’ MOTION TO
COMPEL AND MOTION TO MODIFY THE
SCHEDULING ORDER, GRANTING
PLAINTIFF’S MOTION TO MODIFY THE
SCHEDULING ORDER, DENYING
PLAINTIFF’S MOTIONS TO APPOINT
COUNSEL, FOR SANCTIONS, AND
DISREGARDING PLAINTIFF’S FILING
AND DIRECTING THE CLERK OF COURT
TO SEND PLAINTIFF A COPY OF THE
FILING

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ECF Nos. 61, 62, 64,65, 67, & 68

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v.
GOSAI, et al.,

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Defendants.

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Pending before the court is defendants’ motion to compel and motion to modify the
scheduling order and plaintiff’s motions to appoint counsel and for sanctions against defense
counsel.1 ECF Nos. 61, 62, 64, & 65. I will grant defendants’ motions and order plaintiff to

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Plaintiff has also filed a document titled, “Notice to Compel Discovery.” ECF No. 68.
Plaintiff is informed that court permission is not necessary for discovery requests and that neither
discovery requests served on an opposing party nor that party’s responses should be filed until
such time as a party becomes dissatisfied with a response and seeks relief from the court pursuant
to the Federal Rules of Civil Procedure. Discovery requests between the parties shall not be filed
with the court unless and until those requests are at issue.
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provide discovery responses within twenty-one days of this order. Plaintiff’s motions are denied

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for the reasons stated below.

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Motion to Modify

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Both parties move to modify the scheduling order by extending both the time to complete

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discovery and file dispositive motions by sixty days. ECF Nos. 65 & 67. Good cause appearing,

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both motions are granted. The new discovery deadline is June 26, 2024, and the dispositive

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motion deadline is September 6, 2024.

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Motion to Compel
The July 5, 2023 discovery and scheduling order set the deadline for completing all
discovery as December 8, 2023. ECF No. 53. Since then, the scheduling order has been
modified three times to allow plaintiff additional time to response to defendants’ discovery
requests. Now, despite these extensions, defendants claim that plaintiff still has not responded to
discovery propounded in October 2023. As a result of plaintiff’s nonengagement, defendants
move to compel. ECF No. 61. Plaintiff has not filed a statement of non-opposition or opposition.

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In light of plaintiff’s repeated failures to provide defendants with discovery responses and his

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non-opposition to defendants’ motion, I will grant defendants’ motion to compel and order

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plaintiff to provide discovery responses within twenty-one days of this order.
Plaintiff’s repeated failure to respond to discovery request is troubling, especially given
the fast-approaching dispositive motion deadline, which is now September 6, 2024. Each party
has an obligation in litigation to respond to properly propounded discovery requests. And if a
party chooses to ignore that obligation, the court has the authority to impose certain sanctions—
including dismissal. Fed. R. Civ. P. 37(d)(1)(A), (d)(3). While I am cognizant of challenges that
prisoner-plaintiffs face, plaintiff’s pro se status does not excuse intentional noncompliance with
discovery rules and court orders. See Lindstedt v. City of Granby, 238 F.3d 933, 937 (8th Cir.
2000) (affirming sanction of dismissal, holding that “[a] pro se litigant is bound by the litigation
rules as is a lawyer, particularly here with the fulfilling of simple requirements of discovery”);
Warren v. Guelker, 29 F.3d 1386, 1390 (9th Cir. 1994) (holding that district court could not

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decline to impose any sanction for violation of Fed. R. Civ. P. 11 simply because plaintiff was

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proceeding pro se).

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Plaintiff is cautioned that if he does not submit responses to defendants’ outstanding

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discovery within twenty-one days of this order’s entry, I may consider a sanction of dismissal

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appropriate. See Gordon v. Cnty. of Alameda, 2007 WL 1750207, at *5 (N.D. Cal. June 15,

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2007) (“[P]ro se plaintiffs must abide by the rules of discovery, and when they fail to do so in bad

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faith dismissal is warranted.”).

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Motion to Appoint Counsel
Plaintiff does not have a constitutional right to appointed counsel, see Rand v. Rowland,

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113 F.3d 1520, 1525 (9th Cir. 1997), and the court lacks authority to require an attorney to

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represent plaintiff. See Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296, 298

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(1989). The court can request the voluntary assistance of counsel. See 28 U.S.C. § 1915(e)(1)

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(“The court may request an attorney to represent any person unable to afford counsel”); Rand,

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113 F.3d at 1525. But without a means to compensate counsel, the court will seek volunteer

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counsel only in exceptional circumstances. In determining whether such circumstances exist,

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“the district court must evaluate both the likelihood of success on the merits [and] the ability of

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the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues

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involved.” Rand, 113 F.3d at 1525 (internal quotation marks and citations omitted).

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Plaintiff argues that he believes it was unlawful for him to be deposed without the

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appointment of counsel. ECF No. 62. He also notes that defense counsel sent him a copy of the

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deposition transcript, but requests that the court send him the video recording of the deposition.2

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I cannot find that the appointment of counsel is warranted here. The allegations in the

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complaint are not exceptionally complicated and plaintiff has not demonstrated that he is likely to

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succeed on the merits. The motion is denied.

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Motion for Sanctions

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Plaintiff requests that sanctions be brought against defense counsel “for not ordering

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The court does not have access to the recorded deposition.
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counsel to be appointed.” This is not a ground warranting the imposition of sanctions. The

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motion is denied.

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Accordingly, it is hereby ORDERED that:

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1. Defendants’ motion to compel is, ECF No. 61, is granted. Plaintiff is ordered to

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provide discovery responses within twenty-one days of this order.

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2. Plaintiff’s motion to appoint counsel, ECF No. 62, is denied.

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3. Plaintiff’s motion for sanctions, ECF No. 64, is denied.

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4. Plaintiff’s and defendants’ motions to modify the scheduling order, ECF Nos. 65 &

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67, are granted. The deadline to complete discovery is June 26, 2024, and the deadline

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to file dispositive motions is September 6, 2024.

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5. Plaintiff’s discovery request, ECF No. 68, is disregarded.

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6. The Clerk of Court is directed to make a one-time custody copy of plaintiff’s filing at

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ECF No. 68 and serve it, along with this order, on plaintiff.

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IT IS SO ORDERED.

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Dated:

June 4, 2024

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JEREMY D. PETERSON
UNITED STATES MAGISTRATE JUDGE

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