Price v. La Mesa, City of et al

Filing 71

ORDER RE: Second Motion for Appointment of Counsel [Doc. No. 67 ]; Motion for Extension of Time [To Respond to Discovery Requests] [Doc. No. 68 ]; Motion for Subpoenas [Doc. No. 70 ]; and Motion for Extension of Time to File Reply to Answer [Doc. No. 65 ]. Signed by Magistrate Judge Karen S. Crawford on 7/3/2019. (All non-registered users served via U.S. Mail Service)(Subpoena forms mailed with order)(anh)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 IMMANUEL PRICE, Case No.: 3:16-cv-01174-CAB-KSC Plaintiff, 12 13 v. 14 ORDER RE: SECOND MOTION FOR APPOINTMENT OF COUNSEL [DOC. NO. 67]; MOTION FOR EXTENSION OF TIME [TO RESPOND TO DISCOVERY REQUESTS] [DOC. NO. 68]; MOTION FOR SUBPOENAS [DOC. NO. 70] and MOTION FOR EXTENSION OF TIME TO FILE REPLY TO ANSWER [DOC. NO. 65] J. WEISSE, Defendant. 15 16 17 18 19 20 Plaintiff Immanuel Price, who is currently incarcerated and proceeding pro se and 21 in forma pauperis, has filed four motions that are currently pending before the Court. The 22 Court addresses each of them in turn. 23 I. Background 24 Plaintiff seeks redress pursuant to 42 U.S.C. § 1983 from defendant J. Weise, who is a 25 canine handler for the San Diego Police Department. [Doc. No. 50.] Plaintiff alleges 26 defendant used unreasonable force during a search of plaintiff’s residence in violation of 27 his rights under the Fourth Amendment of the United States Constitution. [Id., at p. 3.] 28 Plaintiff contends that due to defendant’s unreasonable use of force, plaintiff sustained 1 3:16-cv-01174-CAB-KSC 1 multiple dog-bite wounds from a San Diego Police Department canine that was under 2 defendant’s control [Id.] Plaintiff has sued defendant in his individual and official capacity. 3 [Id., at p. 2.] 4 II. 5 On April 23, 2019, plaintiff filed a Motion for Appointment of Counsel, in which he 6 Second Motion for Appointment of Counsel requests the Court appoint counsel to assist him with discovery. [Doc. No. 67, p. 3.] 7 “There is no absolute right to counsel in civil proceedings.” Hedges v. Resolution 8 Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994). District Courts have discretion, however, 9 pursuant to 28 U.S.C § 1915(c)(1) to “request” that an attorney represent indigent civil 10 litigants upon a showing of exceptional circumstances. See Terrell v. Brewer, 935 F.2d 11 1015, 1017 (9th Cir. 1991); Burns v. County of King, 883 F.2d 819, 823 (9th Cir. 1989). 12 “A finding of exceptional circumstances requires an evaluation of both the ‘likelihood of 13 success on the merits and the ability of the plaintiff to articulate his claims pro se in light 14 of the complexity of the legal issues involved.’ Neither of these issues is dispositive and 15 both must be viewed together before making a decision.” Terrell, 935 F.2d at 1017 16 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 17 First, plaintiff’s contention that “a lawyer is in a better position to retrieve discovery” 18 does not constitute exceptional circumstances. The hardships associated with litigating 19 plaintiff’s case are shared by all incarcerated litigants lacking legal expertise.1 There is no 20 basis for the Court to find that plaintiff lacks the ability to articulate and litigate his claims. 21 He has filed several documents with the Court, including the four Motions that are the 22 23 24 25 26 27 28 1 Litigants proceeding pro se are generally afforded some leniency to compensate for their lack of legal training. Indeed, “[i]n civil rights cases where the plaintiff appears pro se, the court must construe the pleadings liberally and must afford plaintiff the benefit of any doubt.” Jackson v. Carey, 353 F.3d 750, 757 (9th Cir. 2003) (internal citation omitted). This also applies to motions. Bernhardt v Los Angeles County, 339 F.3d 920, 925 (9th Cir. 2003). 2 3:16-cv-01174-CAB-KSC 1 subject of this Order, that are organized and present his arguments with reasonable 2 efficiency and clarity. [See also e.g., Doc. No. 1, Complaint & Doc. No. 50, First Amended 3 Complaint]. Second, plaintiff has not addressed the likelihood of success on the merits. 4 Nor is a likelihood of success evident from the face of the First Amended Complaint. [Doc. 5 No. 50]. Consequently, plaintiff’s Motion for Appointment of Counsel is DENIED 6 without prejudice. 7 III. 8 Plaintiff has also filed a Motion for Extension of Time, in which he requests the 9 Court extend the deadline for him to respond to Interrogatories and Requests for Production 10 of Documents that were propounded by defendant. [Doc. No. 68.] Plaintiff asks that his 11 deadline be extended until after the Court rules on his Second Motion for Appointment of 12 Counsel, discussed supra. Plaintiff’s Motion for Extension of Time is GRANTED. 13 Plaintiff shall serve full and complete responses to the Interrogatories and Requests for 14 Production of Documents no later than July 19, 2019. Motion for Extension of Time to Respond to Discovery 15 IV. 16 Plaintiff’s third Motion involves a request that the Court send him two blank 17 subpoenas. [Doc. No. 70.] Plaintiff intends to use one of the blank subpoenas to seek 18 medical records relating to the treatment of his dog bite wounds, while he was incarcerated 19 at the San Diego County Jail. [Id.] The other subpoena he intends to use to request a copy 20 of the San Diego Police Department Canine Unit Operations Manual. [Id. at pp. 1-2.] Motion for Fed. R. Civ. P. Rule 45 Subpoenas 21 Plaintiff’s Motion for Subpoenas is GRANTED. The Court directs the Clerk of 22 Court to mail to plaintiff, with this Order, two subpoena duces tecum form, signed but 23 otherwise blank (AO-88B “Subpoena to Produce Documents, Information or Objects”), 24 which should be completed by plaintiff. When completing these subpoenas, plaintiff is 25 required to specify which documents he is seeking. The request must be specific enough to 26 determine what plaintiff seeks. Plaintiff’s in forma pauperis status allows him assistance 27 in the service of a completed records subpoena by the United States Marshal. See 28 U.S.C. 28 § 1915(d). Within twenty-one (21) days of this Order, plaintiff shall complete the subpoena 3 3:16-cv-01174-CAB-KSC 1 duces tecum forms and return them, along with a copy of this Order to the United States 2 Marshal for service. The subpoenas must provide a minimum of thirty (30) day notice 3 before the date of production. Plaintiff is advised that he must comply with Rule 45 of the 4 Federal Rules of Civil Procedure, which governs the issuance of subpoenas. Motion for Extension of Time to File Reply to Defendant’s Answer 5 V. 6 In the fourth and final Motion before the Court, plaintiff requests he be granted an 7 extension of time to file a Reply to the Answer filed by defendant on February 19, 2019. 8 [Doc. No. 65.] Specifically, he asks that he not be required to file a Reply until after he has 9 received certain documents from defendant. [Id. at p. 2.] Fed. R. Civ. P. Rule 7(a)(7) allows 10 for the filing of a Reply to an Answer only when ordered by the Court. Here, the Court has 11 not ordered plaintiff to file a Reply, nor is there any apparent need for the Court to do so. 12 Plaintiff’s Motion for an Extension of Time to File a Reply is, therefore, DENIED. With 13 respect to plaintiff’s stated need to obtain documents from defendant, the Court reminds 14 plaintiff that Fed. R. Civ. P. Rule 34 allows him to request defendant produce documents 15 that are relevant to plaintiff’s claims or defendant’s defenses, so long as the requested 16 discovery is non-privileged and proportional to the needs of this case. See also Fed. R. 17 Civ. P. 26(b). 18 VI. 19 For the reasons set forth above, the Court hereby Orders: 20 1. plaintiff’s Motion for Appointment of Counsel is DENIED without prejudice; 21 2. plaintiff’s Motion for Extension of Time [to Respond to Discovery] is 22 GRANTED. Plaintiff shall serve full and complete responses to defendant’s 23 Interrogatories and Requests for Production of Documents no later than July 19, 24 2019; Conclusion 25 3. plaintiff’s Motion for Subpoenas is GRANTED. The Clerk of Court is directed 26 to mail to plaintiff two subpoena duces tecum forms, signed but otherwise blank 27 (AO-88B “Subpoena to Produce Documents, Information or Objects”). Within 28 twenty-one (21) days of this Order, plaintiff shall complete the subpoena duces 4 3:16-cv-01174-CAB-KSC 1 tecum forms and return them, along with a copy of this Order to the United States 2 Marshal for service. The subpoenas must provide a minimum of thirty (30) day 3 notice before the date of production; and 4 4. plaintiff’s Motion for an Extension of Time to File a Reply is DENIED. 5 IT IS SO ORDERED. 6 Dated: July 3, 2019 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 3:16-cv-01174-CAB-KSC

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