Andrade v. Lewis et al

Filing 62

ORDER ON MISCELLANEOUS MOTIONS 49 57 60 61 (Illston, Susan) (Filed on 6/13/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ADRIAN FRANK ANDRADE,

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United States District Court
For the Northern District of California

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No. C 11-3528 SI (pr)

Plaintiff,

ORDER ON MISCELLANEOUS
MOTIONS

v.
GREG LEWIS, warden; et al.,
Defendants.
/

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In this action, plaintiff contends that prison officials violated his right to due process

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when they placed him in the security housing unit for an indefinite term after validating him as

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a gang associate. The court denied defendants' first motion for summary judgment because of

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evidentiary problems discussed in the order filed on February 21, 2013. (Docket # 46.) The

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denial was without prejudice to defendants filing a new motion for summary judgment that took

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into account the information provided in that order. Defendants have filed a renewed motion

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for summary judgment. This order addresses several miscellaneous motions that have been filed

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in connection with the renewed motion for summary judgment.

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First, defendants' motion to stay discovery pending resolution of the qualified immunity

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issue raised in their motion for summary judgment is GRANTED. (Docket # 57.) The U.S.

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Supreme Court has made it abundantly clear that a district court should stay discovery until the

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threshold question of qualified immunity is settled. See Crawford-El v. Britton, 523 U.S. 574,

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598 (1998); Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987); Harlow v. Fitzgerald, 457

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U.S. 800, 818 (1982). All discovery is STAYED until the court rules on defendants' motion for

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summary judgment. This ruling means that plaintiff must prepare his opposition to the motion

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to summary judgment without the benefit of any discovery he has not yet received.

Second, defendants' motion to file documents under seal is GRANTED. (Docket # 49.)

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Defendants have demonstrated that the confidential information in the documents, if disclosed,

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would create a severe risk to the safety of other prisoners and institutional security. Paragraphs

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11-15 of the Declaration of J. Silveira dated May 16, 2013 and Exhibits B-F attached thereto will

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be filed under seal and not available for inspection by the public or plaintiff absent a court order

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permitting such inspection. The documents shall remain sealed for seventy-five years or until

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destroyed in conformance with the normal records destruction policy of the United States Courts,

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whichever occurs first. As only portions of the Silveira Declaration and exhibits thereto need

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to be sealed, defendants should do the following: (1) file under seal a copy of the Silveira

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United States District Court
For the Northern District of California

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Declaration with all exhibits; (2) file a copy of the Silveira Declaration with paragraphs 11-15

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redacted, and Exhibits B-F removed for the public record; and (3) serve on plaintiff a copy of

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the Silveira Declaration with paragraphs 11-15 redacted and Exhibits B-F removed.

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Third, plaintiff's motion for appointment of counsel is DENIED. (Docket # 61.) A

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district court has the discretion under 28 U.S.C. §1915(e)(1) to designate counsel to represent

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an indigent civil litigant in exceptional circumstances. See Wilborn v. Escalderon, 789 F.2d

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1328, 1331 (9th Cir. 1986). This requires an evaluation of both the likelihood of success on the

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merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity of

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the legal issues involved. See id. Neither of these factors is dispositive and both must be viewed

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together before deciding on a request for counsel under § 1915(e)(1). Here, exceptional

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circumstances requiring the appointment of counsel are not evident.

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Fourth, plaintiff's motion for an extension of time to file his opposition to defendants'

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renewed motion for summary judgment is GRANTED. (Docket # 60.) The court now sets the

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following new briefing schedule: Plaintiff must file and serve his opposition to the renewed

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motion for summary judgment no later than July 26, 2013. Defendants must file and serve their

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reply, if any, no later than August 9, 2013.

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IT IS SO ORDERED.
Dated: June 13, 2013

_______________________
SUSAN ILLSTON
United States District Judge

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