Dukes v. Spence et al

Filing 71

ORDER denying Plaintiff's 70 Motion for Sanctions; denying 70 Motion to Appoint Counsel. Signed by Magistrate Judge William V. Gallo on 1/5/2012. (All non-registered users served via U.S. Mail Service)(mtb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DARNELL DUKES,

CIVIL NO. 09-1463-L(WVG)

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Plaintiff,

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v.

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ORDER DENYING PLAINTIFF’S
MOTIONS FOR SANCTIONS AND
FOR FOR APPOINTMENT OF
COUNSEL (Doc. # 70)

K. SPENCE, et al.,

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Defendants.

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On December 13, 2011, the Court denied Plaintiff’s Motion for

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Appointment of Counsel. In the Motion, Plaintiff claimed that he was

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entitled to the appointment of counsel because he could not afford

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to pay counsel, had limited access to the law library, had limited

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time to study available legal materials and conduct legal research,

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had no knowledge of the Federal Rules, and had no legal education.

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Further, he alleged that he had been diagnosed with brain damage,

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was being deprived of needed medication, and continued to suffer

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from various neurological symptoms.

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Defendants

filed

an

Opposition

to

Plaintiff’s

Motion.

Defendants argued that there were no exceptional circumstances
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09cv1463

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present to justify appointment of counsel for Plaintiff in this

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case. Further, Defendants’ counsel provided the Court with evidence

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relating

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medication deprivation.

to

Plaintiff’s

alleged

brain

damage

and

his

alleged

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On December 29, 2011, Plaintiff filed “Plaintiff’s Reply To

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Defendant’s Ex Parte Application For An Order To Reopen Discovery

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and

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Counsel.1/ However, a fair reading of the Plaintiff’s “Reply” is that

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again Plaintiff seeks appointment of counsel and sanctions against

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Defendants’ counsel. Plaintiff’s December 29, 2011 “Reply” will be

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referred to as “Motion.”

Delay

Briefing

on

Plaintiff’s

Request

for

Appointment

of

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Plaintiff’s Motion seeks sanctions against Defendants’ counsel

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due to her alleged misrepresentations contained in documents she

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filed with the Court. First, Plaintiff claims that Defendants’

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counsel stated, “discovery closed on June 7, 2011 and as of that

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date, defense counsel was not aware of any diagnoses that Plaintiff

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had

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Plaintiff claims that prior to June 7, 2011, Defendants’ counsel

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already had possession of Plaintiff’s medical files, and at his

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deposition on April 21, 2010, he stated that he was deprived of much

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needed

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Plaintiff contends that his May 26, 2010 settlement brief served on

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Defendants’ counsel mentioned his brain damage. (Motion at 2).

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Plaintiff concludes that “defense counsel... purposely used means of

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deceit

brain

damage.”

prescribed

and

(Motion

medication

manipulation

of

at

1-2)

(emphasis

regarding

the

brain

discovery

added).

damage.

process

Second,

Further,

and

other

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1/

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On November 3, 2011, Defendants’ Ex Parte Motion for Order To Reopen
Discovery and Delay Briefing on Plaintiff’s Motion for Appointment of Counsel was
granted. Discovery was reopened for the sole purpose of allowing Defendants’
counsel to subpoena Plaintiff’s medical records to oppose Plaintiff’s Motion for
Appointment of Counsel.

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misconduct in order to keep (him) at a disadvantage by any necessary

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means.” (Motion at 2).

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The Court finds that Plaintiff’s counsel’s comments in these

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regards were not false. In the December 13, 2011 Order Denying

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Plaintiff’s Motion for Appointment of Counsel, the Court found that

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Defendants’ counsel provided to it substantial evidence that belied

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Plaintiff’s

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Defendants’ use of excessive force on him. In fact, in the evidence

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provided by Defendants’ counsel, there was no such diagnosis.

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Further, the Court found that Plaintiff’s assertion that he was not

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receiving his prescribed medication was belied by the evidence

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presented by Defendants’ counsel. Therefore, the Court finds that

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Defendants’ counsel did not “purposely use means of deceit and

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manipulation of the discovery process and other misconduct in order

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to keep Plaintiff at a disadvantage by any means necessary.” As a

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result, Plaintiff’s Motion for Sanctions is DENIED.

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assertions

that

he

suffered

brain

damage

due

to

Additionally, since Plaintiff’s Motion does not provide any

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further

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appointed attorney, Plaintiff’s Motion for Appointment of Counsel is

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DENIED.

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DATED:

information

regarding

his

alleged

entitlement

to

an

January 5, 2012

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Hon. William V. Gallo
U.S. Magistrate Judge

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09cv1463