Scheinuck v. Sepulveda et al

Filing 52

ORDER by Judge William Alsup denying 36 Motion to Compel; granting 41 Motion to Continue; denying 45 Ex Parte Application ; granting 46 Ex Parte Application (Attachments: # 1 Certifcate of Service) (dt, COURT STAFF) (Filed on 12/15/2010)

Scheinuck v. Sepulveda et al

Doc. 52

1 2 3 4 5 6 7 8 9 10 JOSEPH SCHEINUCK, Plaintiff, v. CAPTAIN D. SEPULVEDA, Defendant. / No. C 09-0727 WHA (PR) ORDER DENYING SECOND MOTION TO COMPEL; GRANTING MOTIONS FOR CONTINUANCE; DENYING MOTION FOR APPOINTMENT OF COUNSEL (Docket Nos. 36, 41, 45, 46) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

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INTRODUCTION Plaintiff, a California prisoner proceeding pro se, has filed a civil rights complaint under 42 U.S.C. 1983 pertaining to conditions of his confinement while at the Santa Clara County Jail. Plaintiff has filed a second motion to compel discovery, two motions to continue deadlines, a motion for appointment of counsel and a motion for leave to file an amended complaint. ANALYSIS Motion to compel Plaintiff filed an initial motion to compel production of several categories of documents, including his entire classification file. The motion was denied because plaintiff did not in good faith meet and confer with defendant prior to filing his motion, as required by Rule 37(a)(2)(B) of the Federal Rules of Civil Procedure. The Court ordered the parties to meet and confer regarding the classification file and two other categories of documents, and allowed plaintiff, if

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dissatisfied with the outcome of those efforts, to file a further motion to compel. With respect to the classification file, plaintiff was ordered to specify the documents therein that he seeks and how they may lead to the discovery of relevant information, and defendant was ordered to identify the documents he is willing to produce and explain to plaintiff his reasons for not producing any of the documents plaintiff seeks. On June 15, 2010, defendant wrote to plaintiff indicating that all of the disputed documents except the classification file had been produced to plaintiff. These included all of plaintiff's medical records as well as other documents. Defendant indicated that in short order portions of the classification file would be produced that were not privileged or did not jeopardize the safety of the prison. On June 24, 2010, plaintiff wrote back saying he needed the entire classification file, and that he could not identify specific documents in the file that he wanted or the reasons he wanted them. On June 29, 2010, defendant produced a substantial portion of the records from the classification file, including records concerning the incidents alleged in the complaint. Some of these records were redacted in part. Defendant identified the records that were not produced and the ones that were redacted, explaining that this was due to the information privilege and concerns for institutional safety. Thereafter, on July 15, 2010, plaintiff filed a second motion to compel seeking his entire classification file, minus the names of any confidential informants. Plaintiff has once again failed to comply with the meet-and-confer requirements prior to filing his motion. Plaintiff may meet and confer by telephone or even by mail, and he has made no allegation that his incarceration prevented him from doing so. Rather, he argues that his prior motion to compel and defendant's opposition to that motion constitute their attempts to meet and confer. They do not, and neither does the correspondence between the parties in June 2010 described above, because it all precedes the disputed issues raised in the current motion to compel. Upon discovering that the documents produced by defendant did not include all of the documents he wanted from the classification file, plaintiff filed his second motion to compel without attempting to meet and confer with defendant by telephone or even by mail to resolve their differences. The motion to compel can be denied on this basis alone. 2

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The motion to compel must also be denied because plaintiff has not specified the records in his classification file that he wants, or explained how they would lead to the discovery of information relevant to his claims, as he was ordered to do. Plaintiff has continued to request the whole file and he states that he cannot narrow his request without looking at the whole file in order to determine which documents are relevant. This is not true. Plaintiff's claims are that defendant failed to protect him when he complained that other inmates were attacking him with cleaning products over approximately sixty days, whereas plaintiff's classification file spans the nearly four years he was at the county jail. Plaintiff could easily narrow his request to only those classification records that relate to the attacks that occurred during the period of time alleged in the complaint. Plaintiff does not do so. Rather, both in his letter to defendant and his current motion to compel, plaintiff continues to seek the entire classification file. As plaintiff has received a substantial portion of his classification file, including documents concerning the incidents alleged in the complaint, and there is no explanation in the record for why he needs the entire file, plaintiff's motion to compel in which he seeks the whole file is denied. B. Motions for Continuance Good cause appearing, plaintiff's motions for continuances to file a reply to defendant's opposition to the motion to compel, and to file an opposition to defendant's motion for summary judgment, are granted. Plaintiff's reply brief on the motion to compel and his opposition to the motion for summary judgment are considered timely. C. Motion for Appointment of Counsel Plaintiff has filed a motion for "appointment" of counsel. There is no constitutional right to counsel in a civil case. Lassiter v. Dep't of Social Services, 452 U.S. 18, 25 (1981). 28 U.S.C. § 1915 confers on a district court only the power to "request" that counsel represent a litigant who is proceeding in forma pauperis. 28 U.S.C. § 1915(e)(1). This does not give the courts the power to make "coercive appointments of counsel." Mallard v. United States Dist. Court, 490 U.S. 296, 310 (1989). In short, the court has only the power to ask pro bono counsel to represent plaintiff, not the power to "appoint" counsel. Plaintiff has demonstrated that he is more than capable of presenting his claims effectively, and the issues in this case are not 3

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complex. As a result, plaintiff's motion for appointment of counsel is denied. D. Motion for leave to file amended complaint Plaintiff has, for a second time, filed a motion for leave to file an amended complaint. His prior motion was denied because he did not include the proposed amended complaint, and the broad range of claims plaintiff described in his motion indicated that would not be properly joined under Federal Rule of Civil Procedure 20(a). Plaintiff attaches a proposed amended complaint to his motion. The proposed amended complaint adds new defendants whom plaintiff alleges were, along with defendant Sepulveda, responsible for failing to protect plaintiff from the attacks of other inmates. As many of the claims in the proposed amended complaint overlap significantly with the claims against Sepulveda, plaintiff's request to amend the complaint will be addressed in conjunction with the ruling on Sepulveda's pending motion for summary judgment. CONCLUSION For the foregoing reasons, plaintiff's motion to compel (docket number 36) is DENIED. Plaintiff's motions for continuances (docket number 41 and 46) are GRANTED. Plaintiff's motion for appointment of counsel (docket number 45) is DENIED. IT IS SO ORDERED.

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Dated: December

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, 2010.

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

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