Arellano v. R.J. Donovan Detention Facility et al

Filing 139

ORDER: (1) Granting 138 Motion for Extension of Time on Discovery And Amending Scheduling Order; (2) Denying 138 Motion to Appoint Counsel. Mandatory Settlement Conference set for 11/8/2017 at 01:45 p.m. in Courtroom 5C before Magistrate Ju dge Jill L. Burkhardt. Memorandum of Contentions of Fact and Law due by 2/22/2018. Proposed Pretrial Order due by 3/15/2018. Final Pretrial Conference set for 3/22/2018 at 01:30 p.m. before Judge Janis L. Sammartino. It is ordered that the Cou rt grants plaintiff's motion for extension of time and denies without prejudice plaintiff's motion for appointment of counsel. Signed by Magistrate Judge Jill L. Burkhardt on 5/3/2017. (All non-registered users served via U.S. Mail Service)(dxj)

Download PDF
1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 13 14 15 Case No.: 14-cv-590 JLS (JLB) RAUL ARELLANO, JR. , ORDER: (1) GRANTING MOTION FOR EXTENSION OF TIME ON DISCOVERY AND AMENDING SCHEDULING ORDER; (2) DENYING MOTION FOR APPOINTMENT OF COUNSEL Plaintiff, v. OFFICER HODGE et al., 16 Defendants. 17 18 [ECF Nos. 131, 138] 19 20 Before the Court is Plaintiff Raul Arellano, Jr.’s: (1) Motion for Extension of Time; 21 and (2) Motion for Appointment of Counsel. (ECF No. 138.) No oppositions to the 22 Motions were filed. For the reasons discussed below, the Court GRANTS Plaintiff’s 23 Motion for Extension of Time and DENIES Plaintiff’s Motion for Appointment of 24 Counsel. 25 I. Motion for Extension of Time 26 Plaintiff moves the Court for an extension of the remaining dates and deadlines in 27 this case so that he may fully conduct discovery. (ECF No. 138 at 1–2.) Plaintiff asserts 28 that, as the result of an unknown investigation, officers at the R.J. Donovan prison deprived 1 14-cv-590 JLS (JLB) 1 him of his legal materials on March 29, 2017, and then transferred him to the prison’s 2 Administrative Segregation Unit on April 5, 2017. (Id. at 1.) Plaintiff estimates that he 3 will remain in the Administrative Segregation Unit, where he has no writing instruments, 4 paper, envelopes, or access to his legal materials, for up to three months. (Id.) As a result, 5 Plaintiff seeks a four-month extension of all unexpired dates and deadlines in this case as 6 of March 29, 2017. (Id. at 2.) 7 For good cause shown, the Court GRANTS Plaintiff’s Motion for Extension of 8 Time. Accordingly, the Case Management Conference Order Regulating Discovery and 9 Other Pretrial Proceedings issued in this case (ECF No. 131) is AMENDED as follows: 10 1. All discovery, including expert discovery, shall be completed on or before 11 October 20, 2017. “Completed” means that all discovery under Rules 30–36 of the Federal 12 Rules of Civil Procedure, and discovery subpoenas under Rule 45, must be initiated a 13 sufficient period of time in advance of the cut-off date, so that it may be completed by the 14 cut-off date, taking into account the times for services, notice, and response as set forth in 15 the Federal Rules of Civil Procedure. 16 Counsel, or unrepresented parties, shall promptly and in good faith meet and confer 17 with regard to all discovery disputes in compliance with Local Rule 26.1(a). The Court 18 expects counsel and parties to make every effort to resolve all disputes without court 19 intervention through the meet and confer process. 20 Discovery motions must be filed in the time and manner directed by Magistrate 21 Judge Burkhardt (see Judge Burkhardt’s Civil Chambers Rules on Discovery Disputes). 22 All discovery motions must be filed within 30 days of the service of an objection, answer, 23 or response which becomes the subject of dispute, or the passage of a discovery due date 24 without response or production, and only after counsel have met and conferred to resolve 25 the dispute and requested an informal teleconference with the Court. 26 2. The parties shall designate their respective experts in writing by July 28, 27 2017. The parties must identify any person who may be used at trial to present evidence 28 pursuant to Rules 702, 703 or 705 of the Federal Rules of Evidence. This requirement is 2 14-cv-590 JLS (JLB) 1 not limited to retained experts. The date for exchange of rebuttal experts shall be on or 2 before August 18, 2017. The written designations shall include the name, address and 3 telephone number of the expert and a reasonable summary of the testimony the expert is 4 expected to provide. The list shall also include the normal rates the expert charges for 5 deposition and trial testimony. 6 3. On or before September 8, 2017, each party shall comply with the disclosure 7 provisions in Rule 26(a)(2)(A) and (B) of the Federal Rules of Civil Procedure. This 8 disclosure requirement applies to all persons retained or specially employed to provide 9 expert testimony, or whose duties as an employee of the party regularly involve the giving 10 of expert testimony. Except as provided in the paragraph below, any party that fails 11 to make these disclosures shall not, absent substantial justification, be permitted to 12 use evidence or testimony not disclosed at any hearing or at the time of trial. In 13 addition, the Court may impose sanctions as permitted by Fed. R. Civ. P. 37(c). 14 15 16 4. Any party shall supplement its disclosure regarding contradictory or rebuttal evidence under Rule 26(a)(2)(D) on or before September 29, 2017. 5. Failure to comply with this section or any other discovery order of the court 17 may result in the sanctions provided for in Fed. R. Civ. P. 37, including a prohibition on 18 the introduction of experts or other designated matters in evidence. 19 6. A Mandatory Settlement Conference shall be conducted on November 8, 20 2017, at 1:45 PM before Magistrate Judge Jill L. Burkhardt in Courtroom 5C, on the fifth 21 floor of the Edward J. Schwartz U.S. Courthouse, 221 West Broadway, San Diego, 22 California 92101. Defendants and defense counsel shall personally attend the settlement 23 conference. Plaintiff shall appear telephonically. Counsel for Defendants shall assist in 24 coordinating the arrangements for Plaintiff’s telephonic appearance. 25 Counsel or any party representing himself or herself shall LODGE confidential 26 settlement statements in accordance with Magistrate Judge Burkhardt’s Civil Chambers 27 Rules, no later than October 27, 2017. The confidential settlement statements should be 28 lodged by e-mail to However, if e-mail is 3 14-cv-590 JLS (JLB) 1 unavailable, settlement conference statements may be lodged by mail to the U.S. District 2 Court, Southern District of California, Office of the Clerk, Attn: Magistrate Judge 3 Burkhardt’s Chambers, 333 West Broadway, Suite 420, San Diego, CA 92101. Settlement 4 conference statements shall not be filed with the Clerk of the Court. Settlement 5 conference statements may be exchanged confidentially with opposing counsel within 6 the parties’ discretion. 7 Each party’s settlement statement shall concisely set forth the following: (1) the 8 party’s statement of the case; (2) the controlling legal issues; (3) issues of liability and 9 damages; (4) the party’s settlement position, including the last offer or demand made by 10 that party; (5) a separate statement of the offer or demand the party is prepared to make at 11 the settlement conference; and (6) a list of all attorney and non-attorney attendees for the 12 Conference, including person(s) and their title(s) or position(s) with the party who will 13 attend and have settlement authority at the conference. If exhibits are attached and the total 14 submission amounts to more than 20 pages, a hard copy must also be delivered directly to 15 Magistrate Judge Burkhardt’s chambers. 16 Pursuant to Local Civil Rule 16.3, all party representatives and claims adjusters for 17 insured defendants with full and unlimited authority1 to negotiate and enter into a binding 18 settlement, as well as the principal attorney(s) responsible for the litigation, must be present 19 and legally and factually prepared to discuss and resolve the case at the mandatory 20 settlement conference. In the case of a corporate entity, an authorized representative of the 21 corporation who is not retained outside counsel must be present and must have 22 discretionary authority to commit the company to pay an amount up to the amount of the 23 24 “Full authority to settle” means that the individuals at the settlement conference must be authorized to fully explore settlement options and to agree at that time to any settlement terms acceptable to the parties. Heileman Brewing Co., Inc. v. Joseph Oat Corp., 871 F.2d 648 (7th Cir. 1989). The person needs to have “unfettered discretion and authority” to change the settlement position of a party. Pitman v. Brinker Int’l., Inc., 216 F.R.D. 481, 485-86 (D. Ariz. 2003). The purpose of requiring a person with unlimited settlement authority to attend the conference includes that the person’s view of the case may be altered during the face to face conference. Id. at 486. A limited or a sum certain of authority is not adequate. Nick v. Morgan’s Foods, Inc., 270 F.3d 590 (8th Cir. 2001). 1 25 26 27 28 4 14-cv-590 JLS (JLB) 1 Plaintiff’s prayer (excluding punitive damages prayers). The purpose of this requirement 2 is to have representatives present who can settle the case during the course of the 3 conference without consulting a superior. 4 Failure to attend the conference or obtain proper excuse will be considered grounds 5 for sanctions. 6 7. All other pretrial motions must be filed on or before November 17, 2017. The 7 moving party must obtain a motion hearing date from the law clerk of the District Judge 8 who will hear the motion, unless the assigned district judge’s chambers rules provide 9 otherwise. The period of time between the date you request a motion date and the hearing 10 date may vary from one District Judge to another. Please plan accordingly. Failure to 11 make a timely request for a motion date may result in the motion not being heard. Motions 12 in limine are to be filed as directed in the Local Rules, or as otherwise set by the assigned 13 district judge. 14 8. 15 Counsel shall file their Memoranda of Contentions of Fact and Law and take any other action required by Civil Local Rule 16.1(f)(2) on or before February 22, 2018. 16 9. Parties or their counsel shall comply with the pre-trial disclosure requirements 17 of Federal Rule of Civil Procedure 26(a)(3) on or before February 22, 2018. Failure to 18 comply with these disclosure requirements could result in evidence preclusion or other 19 sanctions under Federal Rule of Civil Procedure 37. 20 10. Parties or their counsel shall meet and take the action required by Civil Local 21 Rule 16.1(f)(4) on or before March 1, 2018. At this meeting, they shall discuss and attempt 22 to enter into stipulations and agreements resulting in simplification of the triable issues. 23 Further, parties or their counsel shall exchange copies and/or display all exhibits other than 24 those to be used for impeachment. The exhibits shall be prepared in accordance with Civil 25 Local Rule 16.1(f)(4)(c). Parties or counsel shall note any objections they have to any 26 other parties’ Pretrial Disclosures under Federal Rule of Civil Procedure 26(a)(3). Parties 27 or their counsel shall cooperate in the preparation of the proposed pretrial conference order. 28 /// 5 14-cv-590 JLS (JLB) 1 11. Counsel for Defendants will be responsible for preparing the pretrial order 2 and arranging the meetings of counsel pursuant to Civil Local Rule 16.1(f). On or before 3 March 8, 2018, defense counsel must provide plaintiff or his counsel with the proposed 4 pretrial order for review and approval. Plaintiff or his counsel must communicate promptly 5 with defense counsel concerning any objections to form or content of the pretrial order, 6 and both parties shall attempt promptly to resolve their differences, if any, concerning the 7 order. 8 12. The Proposed Final Pretrial Conference Order, including objections to any 9 other parties’ Federal Rule 26(a)(3) Pretrial Disclosures, shall be prepared, served, and 10 lodged with the assigned District Judge on or before March 15, 2018, and shall be in the 11 form prescribed in and comply with Local Rule 16.1(f)(6). Counsel shall also bring a court 12 copy of the pretrial order to the pretrial conference. 13 14 15 16 17 13. The final pretrial conference shall be held before the Honorable Janis L. Sammartino, United States District Court Judge, on March 22, 2018, at 1:30 PM. 14. A post trial settlement conference before a Magistrate Judge may be held within 30 days of verdict in the case. 15. Except for as stated above, this Order does not otherwise change any date, 18 deadline, or requirement set forth in the Court’s December 16, 2016 Case Management 19 Conference Order Regulating Discovery and Other Pretrial Proceedings (ECF No. 131). 20 21 22 16. The dates and times set forth in this Order will not be modified except for good cause shown. 17. Briefs or memoranda in support of or in opposition to any pending motion 23 shall not exceed twenty-five (25) pages in length without leave of a District Court Judge. 24 No reply memorandum shall exceed ten (10) pages without leave of a District Court Judge. 25 Briefs and memoranda exceeding ten (10) pages in length shall have a table of contents 26 and a table of authorities cited. 27 28 18. Counsel for Defendants shall serve a copy of this order on all parties that enter this case hereafter. 6 14-cv-590 JLS (JLB) 1 II. Motion for Appointment of Counsel 2 Plaintiff also moves the Court, for the second time, for appointment of counsel. 3 (ECF No. 138 at 3–4.) He argues that he should be appointed counsel because it would 4 assist him in moving his case forward on the proper schedule and without conflict and 5 because he suffers from physical and mental disabilities that make it difficult to litigate this 6 case on his own. (Id.) Plaintiff asserts that his impairments include fainting, diabetes, 7 seizures “with an after effect of out of focus for hours or days,” pain, nerve damage, 8 neuropathy, depression, panic attacks, and anxiety attacks. (Id.) Plaintiff further asserts 9 that he has been assigned to the prison’s E.O.P. program, which is “for the highest mental 10 treatment.” (Id. at 3.) 11 A. 12 There is no constitutional right to the appointment of counsel in § 1983 cases. 13 Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). However, the Ninth Circuit has 14 held that “a court may under ‘exceptional circumstances’ appoint counsel for indigent civil 15 litigants pursuant to 28 U.S.C. § 1915(e)(1).” Palmer v. Valdez, 560 F.3d 965, 970 (9th 16 Cir. 2009), cert. denied, 559 U.S. 906 (2010) (quoting Agyeman v. Corrs. Corp. of Am., 17 390 F.3d 1101, 1103 (9th Cir. 2004), cert. denied sub nom., Gerber v. Agyeman, 545 U.S. 18 1128 (2005)). “When determining whether ‘exceptional circumstances’ exist, a court must 19 consider ‘the likelihood of success on the merits as well as the ability of the petitioner to 20 articulate his claims pro se in light of the complexity of the legal issues involved.’” Id. 21 (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir.1983)). 22 considerations is dispositive and instead must be viewed together. Id. (quoting Wilborn v. 23 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). Legal Standard Neither of these Plaintiff’s Likelihood of Success on the Merits of His Claims 24 B. 25 “A plaintiff that provides no evidence of his likelihood of success at trial fails to 26 satisfy the first factor of the [exceptional circumstances] test.” Torbert v. Gore, No. 14- 27 cv-2991 BEN (NLS), 2016 WL 1399230, at *1 (S.D. Cal. Apr. 8, 2016); see also Bailey 28 v. Lawford, 835 F. Supp. 550, 552 (S.D. Cal. 1993) (“Without some evidence that he is 7 14-cv-590 JLS (JLB) 1 likely to succeed at trial, plaintiff fails to satisfy . . . [the exceptional circumstances test’s] 2 first factor.”). Here, Plaintiff has offered no evidence to the effect that he has a likelihood 3 of success on the merits, and there is very little before the Court regarding the merits of 4 Plaintiff’s case, other than the assertions in the operative complaint. Thus, at this early 5 stage of the case, when the parties have not yet completed discovery and proffered 6 evidence to the Court in support of their claims and defenses, the Court cannot find that 7 Plaintiff is likely to succeed on the merits of his claims. See Garcia v. Smith, No. 10-cv- 8 1187 AJB (RBB), 2012 WL 2499003, at *3 (S.D. Cal. June 27, 2012) (denying motion 9 for appointment of counsel when it was too early to determine whether any of plaintiff’s 10 claims would survive a motion for summary judgment). Accordingly, the Court 11 concludes that Plaintiff fails to satisfy the first “exceptional circumstances” factor that 12 would support his request for the appointment of counsel. Plaintiff’s Ability to Articulate Claims Without the Assistance of Counsel 13 C. 14 Where a pro se civil rights plaintiff shows that he has a good grasp of basic litigation 15 procedure and has been able to articulate his claims adequately, he does not demonstrate 16 the exceptional circumstances required for the appointment of counsel. See Palmer, 560 17 F.3d at 970. As another court in this district noted, there is “no doubt [that] most pro se 18 litigants find it difficult to articulate their claims and would be better served with the 19 assistance of counsel.” Garcia v. Cal. Dep’t of Corrections & Rehab., No. 12cv1084 IEG 20 (KSC), 2013 WL 485756, at *1 (S.D. Cal. Feb. 6, 2013). But it is for this reason that in 21 the absence of counsel, federal courts employ procedures that are highly protective of a pro 22 se litigant’s rights. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam) (holding 23 that the pleadings of a pro se inmate must be held to less stringent standards than formal 24 pleadings drafted by lawyers). Where a plaintiff appears pro se in a civil rights case, the 25 court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. 26 Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). Thus, as 27 long as a pro se litigant is able to articulate his claim in light of the complexity of the issues, 28 the exceptional circumstances that might support the appointment of counsel do not exist. 8 14-cv-590 JLS (JLB) 1 Here, the purported complexity of this case and Plaintiff’s physical and mental 2 impairments have not prevented Plaintiff from articulating his claims. The court has 3 reviewed Plaintiff’s complaint and other pleadings and finds that the issues he raises are 4 not particularly complex. The Court understands Plaintiff’s claims and the relief that he 5 seeks. In addition, Plaintiff has demonstrated that he has a good grasp on basic litigation 6 procedure, as evidenced by the pleadings and other submissions he has filed with the Court. 7 Thus, Plaintiff has shown that despite his impairments, he has been able to articulate his 8 claims in light of the relative complexity of his case. 9 Viewing the two exceptional circumstances factors together, Plaintiff has not shown 10 a likelihood of success on the merits of his case or that he cannot articulate his claims pro 11 se. Accordingly, Plaintiff has not established the exceptional circumstances required for 12 the appointment of counsel, and Plaintiff’s motion for appointment of counsel is therefore 13 DENIED. This denial is without prejudice, however, and Plaintiff is therefore not 14 precluded from requesting the appointment of counsel at a later stage in this case, should 15 he be able to make the requisite showing of exceptional circumstances at that time. 16 III. Conclusion 17 For the reasons discussed above, the Court GRANTS Plaintiff’s Motion for 18 Extension of Time and DENIES without prejudice Plaintiff’s Motion for Appointment 19 of Counsel (ECF No. 138). 20 21 IT IS SO ORDERED. Dated: May 3, 2017 22 23 24 25 26 27 28 9 14-cv-590 JLS (JLB)

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?