Harrison v. Institution of Gang Investigations et al

Filing 50

ORDER ON MISCELLANEOUS MATTERS AND REFERRING CASE TO MEDIATION PROGRAM (SI, COURT STAFF) (Filed on 5/12/2010)

1 2 3 4 5 6 7 8 MARCUS L. HARRISON, 9 10 v. Plaintiff, No. C 07-3824 SI (pr) ORDER ON MISCELLANEOUS MATTERS AND REFERRING CASE TO MEDIATION PROGRAM UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

United United States District Court

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For the Northern District of California

INSTITUTIONAL GANG OF 12 INVESTIGATIONS; et al., 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants. /

Marcus L. Harrison, a California prisoner, filed this pro se civil rights action under 42 U.S.C. § 1983 asserting a First Amendment claim regarding the confiscation of some of his outgoing and incoming mail. On February 22, 2010, the court denied defendants' motion for summary judgment and ordered the parties to file case management reports indicating what discovery remains to be done, the amount of time needed for discovery, whether any further motions would be filed, when they would be ready for trial, and the expected length of the trial. Defendants filed a case management statement, but plaintiff did not. Plaintiff filed a motion to amend his complaint to add a request for punitive damages, which defendants did not oppose. Plaintiff also filed a request for production of documents and a motion for appointment of counsel. Plaintiff's motion to amend the complaint to add a request for punitive damages against the defendants in their individual capacities is GRANTED. (Docket # 45.) The complaint is deemed amended to include the request for punitive damages in the amount of $50,000 from each defendant in his individual capacity.

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Plaintiff's request for production of documents is DISMISSED as improperly filed.

2 (Docket # 49.) The court generally is not involved in the discovery process and only becomes 3 involved when there is a dispute between the parties about discovery responses. Discovery 4 requests and responses normally are exchanged between the parties without any copy sent to the 5 court. See Fed. R. Civ. P. 5(d) (listing discovery requests and responses that "must not" be filed 6 with the court until they are used in the proceeding or the court orders otherwise). Only when 7 the parties have a discovery dispute that they cannot resolve among themselves should the 8 parties even consider asking the court to intervene in the discovery process. The court does not 9 have enough time or resources to oversee all discovery, and therefore requires that the parties 10 present to it only their very specific disagreements. To promote the goal of addressing only very 11 specific disagreements (rather than becoming an overseer of all discovery), the court requires
For the Northern District of California

United States District Court

12 that the parties meet and confer to try to resolve their disagreements before seeking court 13 intervention. See Fed. R. Civ. P. 37(a)(2)(B); N. D. Cal. Local Rule 37. Where, as here, one 14 of the parties is a prisoner, the court does not require in-person meetings and instead allows the 15 prisoner and defense counsel to meet and confer by telephone or exchange of letters. Although 16 the format of the meet-and-confer process changes, the substance of the rule remains the same: 17 the parties must engage in a good faith effort to meet and confer before seeking court 18 intervention in any discovery dispute. 19 Plaintiff's motion for appointment of counsel is DENIED. (Docket # 44.) A district court 20 has the discretion under 28 U.S.C. §1915(e)(1) to designate counsel to represent an indigent civil 21 litigant in exceptional circumstances. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 22 1986). This requires an evaluation of both the likelihood of success on the merits and the ability 23 of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues 24 involved. See id. Neither of these factors is dispositive and both must be viewed together before 25 deciding on a request for counsel under section 1915(e)(1). Here, exceptional circumstances 26 requiring the appointment of counsel are not evident at this time. The denial of the motion for 27 appointment of counsel is without prejudice to plaintiff filing another motion if his case is not 28 2

1 resolved in the mediation program. 2 The court has a Pro Se Prisoner Mediation Program in which selected prisoner cases with 3 unrepresented plaintiffs are referred to a neutral magistrate judge for mediation proceedings 4 consisting of one or more conferences as determined by the mediator. Now that the court has 5 ruled on the dispositive motion and this case appears almost ready for trial, it may be helpful for 6 the parties to consider mediation. Good cause appearing therefor, this case is now referred to 7 Magistrate Judge Vadas for mediation proceedings pursuant to the Pro Se Prisoner Mediation 8 Program. The proceedings will take place within 90 days of the date this order is filed. 9 Magistrate Judge Vadas will coordinate a time and date for a mediation proceeding with all 10 interested parties and/or their representatives and, within five days after the conclusion of the 11 mediation proceedings, file with the court a report for the prisoner mediation proceedings.
For the Northern District of California

United States District Court

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The clerk will send to Magistrate Judge Vadas a copy of the complaint, the February 22,

13 2010 order denying defendants' motion for summary judgment, and this order. 14 IT IS SO ORDERED. _______________________ SUSAN ILLSTON United States District Judge 15 Dated: May 12, 2010 16 17 18 19 20 21 22 23 24 25 26 27 28 3