Poulson v. Attorney General of the State of Montana et al

Filing 47

ORDER denying 44 Motion for Extension of Time and to Appoint Counsel ; denying 45 Motion to Object to Discovery; denying 46 Motion to Add Defendants. Signed by Magistrate Judge Jeremiah C. Lynch on 3/16/2016. Mailed to Poulson. (TAG, )

FILED

IN THE UNITED STATES DISTRICT COURT
MAR 16 2016
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
Clerk, U.S. District Court
District Of Montana
Missoula

CV-14-000185-M-DLC-JCL

KERMIT POULSON,
Plaintiff,
vs.

ORDER

SGT. RICHTER,
Defendants.
Pending before the Court are Plaintiff Kermit Poulson' s Motion to Request
a 90-day extension of time and to appoint counsel (Doc. 44 ), Motion to Object to
discovery (Doc. 45), and Motion to Add Defendants (Doc. 46). The motions will
be denied.
The Court first notes that Poulson's motions do not comply with Local Rule
7 .1 in that the text of the motions do not state whether the other parties have been
contacted or whether any party objects to the motions. L.R. 7 .1 (c)( 1). As such,
the motions are subject to summary denial.

I. Motion for Extension and Appointment of Counsel
Poulson first requests a 90-day extension of time but does not give a basis
for this request. The Court recently extended the scheduling order in this case
giving both parties additional time to complete discovery and file motions. This
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matter has been pending for nearly two years and the Court will not grant yet
another extension without a reason for doing so.
Poulson also asks for the appointment of counsel. Poulson filed a similar
motion on February 19, 2016 (Doc. 39) which the Court denied on February 26,
2016 (Doc. 42). Poulson has stated no additional basis justifying the appointment
of counsel. A judge may only request counsel for an indigent plaintiff under
"exceptional circumstances." 28 U.S.C. § 1915(e)(l); 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 omitted). Poulson has not made a sufficient showing of
exceptional circumstances. He has not demonstrated a likelihood of success on
the merits or his inability to articulate his claims pro se. This motion will be
denied.

II. Motion to Object to Discovery
Poulson's discovery motion objects to questions in Defendant's first set of
interrogatories. (Doc. 45.) The motion is construed as a motion for a protective
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order but because Poulson failed to comply with Local Rules 7.l(c)(l) and 26.3(c)
the motion will be denied. 1 As set forth above, Local Rule 7 .1 (c)( 1) requires that
"[t]he text of the motion must state that other parties have been contacted and state
whether any party objects to the motion." Local Rule 26.3(c)(l) provides,
The court will deny any discovery motion unless the parties have
conferred concerning all disputed issues before the motion is filed.
The mere sending of a written, electronic, or voicemail
communication does not satisfy this requirement. Rather, this
requirement can be satisfied only through direct dialogue and
discussion in a face to face meeting (whether in person or by
electronic means), in a telephone conversation, or in detailed,
comprehensive correspondence.
There is no required certification in Poulson's motion.
More importantly, Poulson failed to comply with Local Rule 26.3(c)(2)
which provides:
(2) All motions to compel or limit discovery must:
(A) set forth the basis for the motion;
(B) certify that the parties complied with subsection (c)(1) or
a description of the moving party's attempts to comply;
and
(C) and attach, as an exhibit:
(i)
the full text of the discovery sought; and
(ii) the full text of the response.
Poulson did not provide a copy of Defendant's discovery request and he did not

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Poulson was provided a copy of these rules with the Court's June 23, 2015
Scheduling Order. (Doc. 21.)
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set forth the basis of his motion except to say that one question is "leading and
assumes that Poulson thinks Sgt. Richter is not a medical professional." (Doc. 45
at 1.) This is not a sufficient basis upon which to refuse to respond to discovery.
Poulson' s motion will be denied and he will be required to provide full and
complete responses to Defendant's discovery requests on or before the discovery
deadline of April 11, 2016.

III. Motion to Add Defendants
Poulson's motion to add defendants is untimely. He seeks to amend his
pleadings but the deadline for filing amendments to pleadings was July 24, 2015.
(Scheduling Order, Doc. 21.) In seeking to amend his complaint, Poulson must
meet not just the liberal standard for amended pleadings in Rule 15(a) of the
Federal Rules of Civil Procedure, but the stricter "good cause" standard under
Rule 16(b)(4) of the Federal Rules of Civil Procedure. See AmerisourceBergen

Corp. v. Dialysist West, Inc., 465 F.3d 946, 952 (9th Cir. 2006). Additionally, the
Scheduling Order entered June 23, 2015, provides that a continuance of the
"deadlines will not be granted, absent compelling reasons[]" which Poulson has
not presented. (Doc. 21 at 2.) Poulson has not established good cause for failing
to move to amend his pleadings within the Court's deadline.
Discovery is set to close on April 11, 2016 and motions are due on May 25,
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2016. The Court will not further delay this case to bring in additional parties. The
only issues remaining in this case are Poulson' s claims arising from his
confinement at MASC against Sgt. Richter. This matter has been pending since
June 16, 2014. Poulson had over a year to amend his complaint, he failed to
timely do so. No additional claims or parties will be considered in this matter.
Accordingly, the Court issues the following:

ORDER
1. Poulson's Motion to Request a 90-day extension of time and to appoint
counsel (Doc. 44) is denied.
2. Poulson's Motion to Object to discovery (Doc. 45) as construed as a
motion for protective order is denied. Poulson must provide full and complete
responses to Defendant's discovery requests prior to the April 11, 2016 discovery
deadline.
3. Poulson's Motion to Add Defendants (Doc. 46) is denied.
DATED this 16th day ofMarch, 2016.

ah c. Lynch
"ted States Magistrate Judge

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