Pennings v. Barrera et al

Filing 52

ORDER Re: Defendants' 39 Motion to Continue Pretrial Motion Deadline; Plaintiff's 43 , 47 Motions for Extension and Appointment of Counsel; and Resetting the Scheduling Order. It is ordered, Defendants' Motion to Compel is hereby granted in part. Plaintiff must sit for a deposition by 6/25/2018. The Motion to Continue the Pretrial Motion is granted, with any pretrial motion now due on or before 7/31/2018. Plaintiff's Motion to Extend Discovery is granted in part until 6/29/2018, and Plaintiff's Motion for Appointment of Counsel is denied without prejudice. Signed by Magistrate Judge Mitchell D. Dembin on 5/29/2018. (All non-registered users served via U.S. Mail Service)(mpl)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

SOUTHERN DISTRICT OF CALIFORNIA

9
10

OTONIEL TYLER PENNINGS,
Plaintiff,

11
12

v.

13

BARRERA; BENJAMIN;
SANCHEZ; STAPLETON; JOHN
and JANE DOES,

14
15

Defendants.

16
17

Case No.: 16cv582-JLS-MDD
ORDER RE:
DEFENDANTS' MOTION TO
COMPEL AND CONTINUE
PRETRIAL MOTION DEADLINE;
PLAINTIFF'S MOTIONS FOR
EXTENSION AND APPOINTMENT
OF COUNSEL;

18

AND RESETTING THE
SCHEDULING ORDER

19

[ECF NOS. 39, 43, 47]

20
Before the Court are Defendants’ Motion to Compel and an ex parte

21
22

Motion to Continue the Pretrial Motion Deadline and Plaintiff’s Motions for

23

an extension of time to complete discovery and appointment of counsel. (ECF

24

Nos. 39, 43, 47). Plaintiff further requests an injunction allowing physical

25

access to the law library at George F. Bailey Detention Facility, which will be

26

addressed in a forthcoming order. (ECF No. 39 at 15).

27

///
1
16cv582-JLS-MDD

1

BACKGROUND FACTS

2

Under the operating Scheduling Order, all discovery closed on April 12,

3

2018, pretrial motions are due May 11, 2018, and a Mandatory Settlement

4

Conference is scheduled for May 29, 2018. (ECF No. 32 at 2-3). The Court

5

filed an Order authorizing an inmate deposition on November 15, 2017.

6

(ECF No. 34). After Plaintiff was transferred to a different facility, a second

7

Order was issued, setting April 12, 2018, as the deadline for Plaintiff’s

8

deposition. (ECF No. 36).

9

Defendant’s first attempt to depose Plaintiff occurred on March 21,

10

2018. According to Defendants’ Motion to Compel, when Defendants’ counsel,

11

with a court reporter and stenographer present, began Plaintiff’s deposition,

12

Plaintiff stated that his family had retained outside counsel. (ECF No. 39-1

13

at 3). The deposition was immediately halted and rescheduled for April 3,

14

2018 so that Plaintiff could have his attorney present. (Id.). On April 3,

15

Plaintiff stated that he was unrepresented, but nonetheless refused to be

16

deposed, stating he “felt unprepared.” (Id.). Defendant then filed the instant

17

Motion, requesting that Plaintiff be compelled to sit for a deposition and for

18

“$5,384.40 in sanctions.”
Plaintiff then filed a Motion requesting a 90-day extension in order to

19
20

complete his own discovery, access to legal resources in the law library, and a

21

court appointed attorney. (ECF No. 43). Plaintiff states that due to being

22

released on parole and then re-incarcerated, he lost all of his legal

23

paperwork. (Id. at 1-2). Plaintiff further states that he has made diligent

24

efforts to comply with Defendants’ discovery requests. (Id. at 2). Plaintiff did

25

not indicate why he refused to sit for his rescheduled deposition.

26

///

27

///
2
16cv582-JLS-MDD

1
2

LEGAL STANDARD
Federal Rule of Civil Procedure 30 governs the requirements of

3

depositions by oral examination. Fed. R. Civ. P. 30(a). If there are objections

4

at the time of the examination, it must be noted on the record but the

5

deposition still proceeds; “the testimony is taken subject to any objection.”

6

Fed. R. Civ. P. 30(c)(2). A deponent may refuse to answer questions only

7

“when necessary to preserve a privilege, to enforce a limitation ordered by the

8

court, or to present a motion under Rule 30(d)(3).” Fed. R. Civ. P. 30(c)(2).

9

“[T]here is no absolute right to counsel in civil proceedings.” Hedges v.

10

Resolution Tr. Corp., 32 F.3d 1360, 1363 (9th Cir. 1994) (citation omitted).

11

Thus, federal courts do not have the authority “to make coercive

12

appointments of counsel.” Mallard v. United States District Court, 490 U.S.

13

296, 310 (1989); see also United States v. $292,888.04 in U.S. Currency, 54

14

F.3d 564, 569 (9th Cir. 1995).

15

District courts have discretion, however, pursuant to 28 U.S.C. §

16

1915(e)(1), to “request” that an attorney represent indigent civil litigants

17

upon a showing of exceptional circumstances. See Terrell v. Brewer, 935 F.2d

18

1015, 1017 (9th Cir. 1991); Burns v. County of King, 883 F.2d 819, 823 (9th

19

Cir. 1989). “A finding of exceptional circumstances requires an evaluation of

20

both the ‘likelihood of success on the merits and the ability of the plaintiff to

21

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

22

involved.’ Neither of these issues is dispositive and both must be viewed

23

together before reaching a decision.” Id. (quoting Wilborn v. Escalderon, 789

24

F.2d 1328, 1331 (9th Cir. 1986)).

25

DISCUSSION

26

I. Defendants’ Motion to Compel and Plaintiff’s Motion for Extension of Time

27

Defendants absolutely have the right to depose Plaintiff and to that
3
16cv582-JLS-MDD

1

extent, the Court GRANTS IN PART the Motion to Compel. As such, the

2

Court ORDERS that Plaintiff sit for a deposition on or before June 25,

3

2018. While Plaintiff requests a 90-day extension for discovery, the Court

4

finds that a more conservative extension is in order to encourage swift

5

progress on the case and extends discovery 31 days to June 29, 2018. No

6

further extensions will be given. The Court declines to issue sanctions

7

against Defendant.

8
9
10

Further the Court GRANTS Defendants’ Motion to Continue the
Pretrial Motion Deadline and will modify the remaining dates on the
scheduling order as follows:

11

1) All pretrial motions must be filed by July 31, 2018.

12

2) The Mandatory Settlement Conference scheduled for May 29,

13

2018, is rescheduled to August 7, 2018 at 9:15 a.m.

14

3) Memoranda of Contentions of Fact and Law and any other

15

action required by L.R. 16.1(f)(2) are due by October 31, 2018.

16

4) Pretrial disclosure requirements of Fed. R. Civ. P. 26(a)(3) are

17

due by October 31, 2018.

18

5) The parties shall meet and take action required by Local Rule

19

16.4(f)(4) by November 7, 2018.

20

6) By November 14, 2018, Defendants’ counsel must provide

21

Plaintiff with the proposed Pretrial Order for review and approval.

22

7) The Proposed Final Pretrial Conference Order, shall be

23

prepared, served and lodged with the assigned district judge on

24

November 21, 2018.

25

8) The final Pretrial Conference is scheduled on the calendar of

26

the Honorable Janis L. Sammartino on November 29, 2018

27

at 1:30 p.m.
4
16cv582-JLS-MDD

1
2

Motion for Appointment of Counsel
Plaintiff supports his request for counsel by highlighting his layman

3

status. However, it appears that Plaintiff has a sufficient grasp of his case,

4

the legal issues involved, and is able to adequately articulate the basis of his

5

claims. In fact, Plaintiff’s pro se pleading has survived the initial screening

6

provisions of 28 U.S.C. §§ 1915(e)(2) and 1915A(b); Plaintiff has effected

7

service on all defendants; and was able to file a motion requesting an

8

extension of time to file an opposition to Defendants’ Motion to Dismiss, an

9

Objection to Defendants’ Motion to Dismiss, and the instant Motion for

10
11

Extension of Time to Complete Discovery. (ECF Nos. 21, 25, 43).
Accordingly, under the circumstances of this case, the Court finds that

12

Plaintiff has failed to plead facts sufficient to show the “exceptional

13

circumstances” required for appointment of counsel pursuant to 28 U.S.C. §

14

1915(e)(1) and therefore DENIES without prejudice Plaintiff’s Motion for

15

Appointment of Counsel.
CONCLUSION

16
17

Defendants’ Motion to Compel is hereby GRANTED IN PART.

18

Plaintiff must sit for a deposition by June 25, 2018. The Motion to Continue

19

the Pretrial Motion is GRANTED, with any pretrial motion now due on or

20

before July 31, 2018. Plaintiff’s Motion to Extend Discovery is GRANTED

21

IN PART until June 29, 2018, and Plaintiff’s Motion for Appointment of

22

Counsel is DENIED without prejudice.

23
24

IT IS SO ORDERED.
Dated: May 29, 2018

25
26
27
5
16cv582-JLS-MDD