Trevino v. Dotson et al

Filing 84

ORDER ON MOTIONS by Judge Phyllis J. Hamilton denying as moot 54 Motion to Dismiss; denying 72 Motion to Compel; granting 74 Motion to Stay; denying 77 Motion to Strike ; denying 78 Motion for Joinder; denying 78 Motion to Stay; denying 80 Motion to Appoint Counsel; granting 76 Motion for Extension of Time to File Response/Reply re 73 MOTION for Summary Judgment; Responses due by 6/23/2017. (kcS, COURT STAFF) (Filed on 5/22/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ROBERT TREVINO,
Plaintiff,

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Re: Dkt. Nos. 54, 72, 74, 76, 77, 78, 80
E. DOTSON, et al.,
Defendants.

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United States District Court
Northern District of California

ORDER ON MOTIONS

v.

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Case No. 15-cv-05373-PJH

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Plaintiff proceeds with a pro se civil rights action. Presently pending are several

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motions filed by both parties. Defendants filed a motion to revoke plaintiff’s in forma

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pauperis status, but plaintiff has paid the full filing fee, therefore the motion is denied as

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moot.

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Unserved Defendants

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Plaintiff has also filed a motion to compel non-parties to provide information with

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respect to his attempts to serve two outstanding defendants, Keku and Doss. The motion

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to compel is denied. In order to obtain the contact information for these individuals

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plaintiff may seek such information through the California Public Records Act or any other

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means available. Plaintiff has also sent subpoenas, but the subpoenas were not signed

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or issued by the Court. Plaintiff will be provided three Court subpoenas. As a pro se

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litigant, plaintiff needs the Court’s Clerk to issue a subpoena. Fed. R. Civ. P. 45(a)(3).

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Therefore, the Clerk shall send to plaintiff three blank document subpoena forms

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(subpoena duces tecum) for plaintiff to fill out and return to the Court so that the Clerk

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may issue the subpoena and the Marshal may serve it on the subpoenaed party. Plaintiff

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needs to fill in all of the necessary information, but must leave the signature line blank so

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that the Clerk may sign it. Plaintiff is informed that the subpoenas should just be used to

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obtain information for the unserved defendants. The other information he sought can be

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obtained through discovery and it appears that defendants have already provided

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documents sent to the Monterey County District Attorney that plaintiff was seeking.

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Plaintiff request to file a supplemental complaint is denied without prejudice

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because plaintiff has only identified Doe defendants and has not pled sufficient

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allegations to state a claim.1

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Discovery

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Defendants have filed a motion for summary judgment for failure to exhaust that is
not yet fully briefed. Defendants have also filed a motion to stay discovery pending

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United States District Court
Northern District of California

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resolution of the summary judgment motion. Defendants note that they have already

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responded to 124 discovery requests and plaintiff recently served 259 more requests. A

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district court has broad discretion to stay discovery pending the disposition of a

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dispositive motion. See Panola Land Buyers Ass'n v. Shuman, 762 F.2d 1550, 1560

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(11th Cir. 1985); Scroggins v. Air Cargo, Inc., 534 F.2d 1124, 1133 (5th Cir. 1976);

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Hovermale v. School Bd. of Hillsborough County, 128 F.R.D. 287, 289 (M.D. Fla. 1989).

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But it is an abuse of that discretion to stay discovery if plaintiff is denied discovery that

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relates to the motion. See Scroggins, 534 F.2d at 1133. The motion for a stay is granted

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in that discovery is stayed with the exception of discovery related to exhaustion and the

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contact information or location of the unserved defendants.

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Appointment of Counsel

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Plaintiff has again requested the appointment of counsel. However, there is no

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constitutional right to counsel in a civil case, Lassiter v. Dep't of Social Services, 452 U.S.

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18, 25 (1981), and although district courts may "request" that counsel represent a litigant

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who is proceeding in forma pauperis, as plaintiff is here, see 28 U.S.C. § 1915(e)(1), that

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If this action proceeds past the pending motion for summary judgment for failure to
exhaust, plaintiff will be provided another opportunity to present his allegations and
arguments for a supplemental complaint.
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does not give the courts the power to make "coercive appointments of counsel." Mallard

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v. United States Dist. Court, 490 U.S. 296, 310 (1989).

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The Ninth Circuit has held that a district court may ask counsel to represent an

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indigent litigant only in "exceptional circumstances," the determination of which requires

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an evaluation of both (1) the likelihood of success on the merits and (2) the ability of the

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

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involved. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). The issues presented

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are not complex and do not represent exceptional circumstances. Plaintiff does not

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require counsel at this point to oppose summary judgment. The motion to appoint

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counsel is denied.
CONCLUSION

United States District Court
Northern District of California

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1. Defendants’ motion to revoke plaintiff’s in forma pauperis status (Docket No.
54) is DENIED as moot.

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2. Plaintiff’s motion to compel (Docket No. 72) is DENIED as discussed above.

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3. As a pro se litigant, plaintiff needs the Court’s Clerk to issue a subpoena. Fed.

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R. Civ. P. 45(a)(3). Therefore, the Clerk shall send to plaintiff three (3) blank

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document subpoena forms (subpoena duces tecum) for plaintiff to fill out and return to

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the Court so that the Clerk may issue the subpoena and the Marshal may serve it on the

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subpoenaed party. Plaintiff needs to fill in all of the necessary information, but must

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leave the signature line blank so that the Clerk may sign it.

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4. Defendants’ motion for a discovery stay (Docket No. 74) is GRANTED as set
forth above.
5. Plaintiff’s motion for an extension (Docket No. 76) is GRANTED and the

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opposition to the summary judgment motion shall be filed by June 23, 2017. Plaintiff’s

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motion to stay the case (Docket No. 78) is DENIED and plaintiff must file an opposition to

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summary judgment or else this case may be dismissed.

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6. Plaintiff’s motion to strike the summary judgment motion (Docket No. 77) is
DENIED as meritless.
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7. Plaintiff’s motio to appoint counsel (Docket No 80) is DE
on
o.
ENIED.

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IT IS SO ORDER
S
RED.

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Da
ated: May 22, 2017

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PH
HYLLIS J. H
HAMILTON
N
Un
nited States District Ju
s
udge

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2015\2015_05373
3_Trevino_v_Do
otson_(PSP)\15-c
cv-05373-PJH-or
rd2.docx

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United States District Court
Northern District of California

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UNITED STATES D
D
DISTRICT C
COURT

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NORTHER DISTRIC OF CALI
RN
CT
IFORNIA

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ROBERT TR
REVINO,

Case No. 1
15-cv-05373
3-PJH

Plaintiff,
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v.

CERTIFIC
CATE OF S
SERVICE

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E. DOTSON, et al.,
s.
Defendants

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United States District Court
Northern District of California

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I, the un
ndersigned, hereby certify that I am an employe in the Offi of the Clerk, U.S.
ee
ice
Dis
strict Court, Northern Di
istrict of Cal
lifornia.

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That on May 22, 20 I SERV
n
017,
VED a true an correct co
nd
opy(ies) of t attached, by placing
the
said copy(ies) in a postage paid envelo addressed to the pers
i
ope
d
son(s) herein
nafter listed, by
dep
positing said envelope in the U.S. Mail, or by pla
d
n
M
acing said co
opy(ies) into an inter-off delivery
o
ffice
y
rec
ceptacle loca in the Cl
ated
lerk's office.
.

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67
Robert Trevino ID: J-6436
Sal
linas Valley State Prison D4-#130L
n
P.O Box 1050
O.
0
Sol
ledad, CA 93960

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Da
ated: May 22 2017
2,

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usan Y. Soon
ng
Su
Cl
lerk, United States Distr Court
d
rict

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By
y:_________
___________
_______
K
Kelly Collins, Deputy Cle to the
,
erk
H
Honorable PH
HYLLIS J. H
HAMILTON
N
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