Anderson v. Montana Department of Corrections et al

Filing 29

ORDER denying without prejudice 23 Second Motion to Appoint Counsel ; denying without prejudice 24 Motion for an Order Compelling Discovery. Signed by Magistrate Judge John Johnston on 10/1/2015. Mailed to Anderson. (TAG, ) Modified on 10/1/2015 to clarify docket text(TAG, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
CV-15-00031-H-DLC-JTJ

THOMAS SCOTT ANDERSON,
Plaintiff,

ORDER

vs.
MIKE BATISTA, Director of the
Montana Department of Corrections,
LEROY KIRKEGARD, Warden of the
Montana State Prison, and DR. KOHUT,
individually and in their official
capacities,1
Defendants.

Plaintiff Thomas Anderson, a state prisoner proceeding in forma pauperis
and without counsel, has filed a Second Motion to Appoint Counsel (Doc. 23) and
a Motion to Compel Discovery (Doc. 24). The motions will be denied.
I. Motion to Appoint Counsel
Mr. Anderson filed his first motion for the appointment of counsel on July
17, 2015. (Doc. 12.) The Court denied that motion on July 27, 2015. (Doc. 14.)
As set forth in the Court’s prior Order, a judge may only request counsel for an

1

The case style has been amended to reflect the August 7, 2015 dismissal of
the Montana Department of Corrections. (Doc. 17.)
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indigent plaintiff under “exceptional circumstances.” 28 U.S.C. § 1915(e)(1);
Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).
A finding of exceptional circumstances requires an evaluation of both
the likelihood of success on the merits and the ability of the petitioner
to articulate his claims pro se in light of the complexity of the legal
issues involved. Neither of these factors is dispositive and both must
be viewed together before reaching a decision.
Terrell, 935 F.2d at 1017 (citing Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th
Cir. 1986) (citations and internal quotation marks omitted).
The Court previously found that Mr. Anderson had not made a sufficient
showing of exceptional circumstances because he had not demonstrated a
likelihood of success on the merits or his inability to articulate his claims pro se.
(Doc. 14 at 3.)
Mr. Anderson argues in his latest motion that counsel is necessary to obtain
declarations from other inmates in order to demonstrate that Defendants were
deliberately indifferent in their medical practices at Montana State Prison. (Counsel
Mtn, Doc. 23 at 1-2.) The testimony of other inmates may have been relevant to
Mr. Anderson’s claim that the Montana Department of Corrections had a custom,
policy, and practice of refusing to provide treatment for Montana State Prison
inmates with Hepatitis C infections. (Complaint, Doc. 2 at 3, ¶ 17.) However, the
Court dismissed Montana Department of Corrections based on Eleventh
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Amendment immunity on August 7, 2015. (Doc. 17.) The only remaining claims
pertain to the individual Defendants’ alleged deliberate indifference to Mr.
Anderson’s serious medical needs. The Court is not inclined to request counsel to
represent Mr. Anderson for the purpose of interviewing other inmates when the
only remaining issue in this case is whether Defendants were deliberately
indifferent to Mr. Anderson’s medical needs. The request for appointment of
counsel will be denied without prejudice.
II. Motion to Compel
Mr. Anderson has also filed a motion to compel discovery, indicating that he
served interrogatories on Defendants on August 8, 2015, and as of September 10,
2015 (when he signed his motion to compel), he had not received a response from
Defendants. (Doc. 24.) He also asks the Court to compel the production of a
number of documents listed in his motion.
With regard to Mr. Anderson’s requests for the production of documents, it
does not appear that he has served Defendants with requests for production of
documents pursuant to Rule 34 of the Federal Rules of Civil Procedure. He cannot
ask the Court to compel compliance with the discovery rules set forth in the Federal
Rules of Civil Procedure until he has at least served discovery requests on
Defendants.
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With regard to Mr. Anderson’s motion to compel responses to his
interrogatories, there is no indication that he consulted opposing counsel regarding
the nature of this dispute prior to filing his motion. The parties were advised in the
Court’s August 6, 2015 Scheduling Order (Doc. 15) that the Court would not
consider discovery disputes unless the moving party had complied with
Fed.R.Civ.P. 29, Fed.R.Civ.P. 37, D. Mont. L.R. 7, and D. Mont. L.R. 26.3(c).
Since there is no indication in the motion that Mr. Anderson has complied with this
procedure, the motion will be denied without prejudice.
In addition, Defendants represent that they timely served responses to Mr.
Anderson’s interrogatories on September 8, 2015. (Docs. 27, 28.) Should Mr.
Anderson be unsatisfied with Defendants’ interrogatory responses, he must comply
with Fed.R.Civ.P. 37 (“The motion must include a certification that the movant has
in good faith conferred or attempted to confer with the person or party failing to
make disclosure or discovery in an effort to obtain it without court action.”); D.
Mont. L.R. 7 (“The text of the motion must state that other parties have been
contacted and state whether any party objects to the motion.”); and D. Mont. L.R.
26.3(c) (“The Court will deny any discovery motion unless the parties have
conferred concerning all disputed issues before the motion is filed.”) before filing
any subsequent motions to compel. That is, Mr. Anderson must communicate with
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opposing counsel about why he feels the discovery responses are inadequate and
must try to resolve the issue without involving the Court.
Should the parties then not be able to resolve the issues between themselves,
Mr. Anderson may then seek the Court’s assistance by filing a motion to compel.
Accordingly, the Court issues the following:
ORDER
1. Mr. Anderson’s Second Motion to Appoint Counsel (Doc. 23) is
DENIED WITHOUT PREJUDICE.
2. Mr. Anderson’s Motion for an Order Compelling Discovery (Doc. 24) is
DENIED WITHOUT PREJUDICE.
3. At all times during the pendency of this action, Mr. Anderson must
immediately advise the Court and opposing counsel of any change of address and
its effective date. Failure to file a notice of change of address may result in the
dismissal of the action for failure to prosecute pursuant to Federal Rule of Civil
Procedure 41(b).
DATED this 1st day of October, 2015.

/s/ Jon Johnston
John Johnston
United States Magistrate Judge
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