Michaud v. Bannister et al

Filing 77

ORDER Denying 64 Motion for Discovery and Denying 65 Motion to Appoint Counsel. Signed by Magistrate Judge Peggy A. Leen on 07/30/2012. (Copies have been distributed pursuant to the NEF - AC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JOHN MICHAUD,

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Plaintiff,
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vs.
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ROBERT BANNISTER, et al.,
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Defendants. )
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Case No. 2:08-cv-01371-RCJ-PAL
ORDER
(Mtn for Discovery - Dkt. #64)
(Mtn to Appoint Counsel - Dkt. #65)

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This matter is before the court on Plaintiff John Michaud’s Motion for Discovery (Dkt. #64) and

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Motion for an Appointment of Counsel (Dkt. #65). The court has considered the Motions and

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Defendants Robert Bannister’s and Brian Williams’ Responses (Dkt. ##66, 67).

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Plaintiff is proceeding in this matter pro se and in forma pauperis. On December 2, 2008, the

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court entered an Order (Dkt. #4) granting Plaintiff’s Application to Proceed In Forma Pauperis (Dkt.

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#1) and directing Plaintiff to pay the initial filing fee. Upon Plaintiff’s payment (Dkt. #5), the court

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entered an Order (Dkt. #6) screening the Complaint and directing service of process. The Attorney

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General’s Office accepted service on behalf of Defendants Bannister and Williams. See Acceptance of

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Service (Dkt. #6). Defendant Utilization Review Committee was never served, and the time for service

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under Federal Rule of Procedure 4(m) has run. See also Orders ##45, 63 (denying Plaintiff’s request

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for extension of time to serve Utilization Review Committee initially and on reconsideration).

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Defendants Bannister and Williams filed a Motion to Dismiss (Dkt. #11). On September 18,

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2009, the district judge granted the Motion to Dismiss on the grounds that Plaintiff’s claims are barred

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by the applicable statute of limitations. See Order (Dkt. #16). The Clerk of Court entered judgment in

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favor of Defendants and against Plaintiff. See Clerk’s Judgment (Dkt. #17). Plaintiff filed a Notice of

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Appeal (Dkt. #18) on October 5, 2009. The Ninth Circuit affirmed in part and reversed in part,

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remanding the case for further proceedings solely on Plaintiff’s related to his access to medical care in

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2007 and 2008. See Opinion of USCA (Dkt. #23). The Circuit issued its Mandate (Dkt. #24) on

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January 26, 2011, and on October 19, 2011, it was spread on the record. See Order (Dkt. #42). The

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district judge approved the parties’ stipulation to stay until October 21, 2011, so that the parties could

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engage in settlement negotiations. See Order (Dkt. #44).

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The stay expired, and on November 7, 2011, the court entered a Scheduling Order (Dkt. #45).

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That Order provides, “Any discovery motions shall be filed and served no later than January 23, 2012. .

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. . Any motion filed beyond the time limit fixed by this Scheduling Order shall be stricken, unless the

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Court grants an exception for good cause shown.” Id. at 3:19, 22-23. Additionally, the court set a

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discovery deadline of February 4, 2012. Id. at 3:24-25.

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I.

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Motion for Discovery (Dkt. #64).
Plaintiff’s Motion for Discovery (Dkt. #64) seeks information, including documents and

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interrogatory responses, from Defendants and third parties. Defendants respond that were not served

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with these requests, and Plaintiff improperly filed the requests with the court instead. Defendants also

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contend Plaintiff did not meet and confer before filing the Motion as required by LR 26-7(b). Moreover,

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although Plaintiff’s motion is dated January 19, 2012, it was not filed until January 24, 2012–one day

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after the deadline set by the Scheduling Order for filing discovery motions. Additionally, to the extent

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Plaintiff’s Motion implicitly requests an extension of the discovery deadline, it should be denied

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because Plaintiff filed the Motion after the deadline for requesting an extension. He has not complied

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with the Scheduling Order’s or Local Rules’ requirements to set forth what discovery Plaintiff has

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completed, what discovery remains, and a proposed schedule for completing it. Plaintiff has not stated

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good cause to extend the motions or discovery deadlines.

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To the extent filing the Motion constitutes service of the discovery requests upon Defendants,

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the Motion should be denied because Plaintiff has not provided sufficient time for Defendants to

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respond. The Motion was filed January 24, 2012, and discovery closed February 2, 2012. Defendants

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are entitled to thirty days to respond to requests for production of documents and interrogatories under

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the Federal Rules of Civil Procedure, and Plaintiff has only allowed for eight days before the close of

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discovery. Finally, Defendants assert Plaintiff’s discovery requests are objectionable on the merits.
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Plaintiff’s Motion will be denied. First, Plaintiff’s written discovery requests should have been

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propounded on Defendants rather than filed with the court. See generally Fed.R.Civ.P. 33 and 34.

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Plaintiff did not serve these requests upon Defendants, but he has served other interrogatories upon

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Defendants, so it is apparent that Plaintiff has some understanding of the discovery process. Second,

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Local Rule 26-8 provides that written discovery shall not be filed with the court. Id. Third, Plaintiff’s

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Motion is untimely because it was filed after the deadline for filing discovery-related motions. Fourth,

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discovery requests must be served sufficiently in advance of the discovery cutoff to allow opposing

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parties to respond on or before the discovery deadline. Finally, a request for an extension filed after the

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expiration of a deadline established by the court’s scheduling order “shall not be granted unless the

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moving party . . . demonstrates that the failure to act was the result of excusable neglect.” LR 6-1(b).

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Plaintiff’s Motion does not state good cause for an extension, let alone excusable neglect.

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II.

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Motion for an Appointment of Counsel (Dkt. #65).
Plaintiff requests the court appoint counsel to represent him pursuant to the Federal Rules of

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Criminal Procedure. He asserts that he has been receiving help in this matter from another inmate.

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Exceptional circumstances exist because that inmate is no longer in state custody, and Plaintiff has no

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legal education or trial experience.

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Defendants respond that the court already denied Plaintiff’s request to appoint counsel on

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November 7, 2011. Moreover, Plaintiff has not satisfied his burden of showing that he is likely to

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succeed on the merits of his claim. Furthermore, Plaintiff’s prior filings demonstrate that he can make

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legal arguments, and his claim that he could better assert his claims with the assistance of counsel does

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not establish the existence of exceptional circumstances.

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In an Order (Dkt. #45) entered November 7, 2011, the court denied Plaintiff’s first Motion to

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Appoint Counsel (Dkt. #37). That Order set forth the standard for appointing counsel in cases brought

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under the in forma pauperis statute, 28 U.S.C. § 1915, and denied Plaintiff’s Motion because he failed

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to show exceptional circumstances existed and because he could adequately present his claims to the

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court, as evidenced by his successful appeal to the Ninth Circuit. The court also noted this is not such a

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complex case that counsel must be appointed.

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The court fully appreciates that almost every pro se plaintiff would benefit from being

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represented by counsel. However, the court cannot require an attorneys to accept an appointment, and

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there are very few attorneys available for appointment to pro se prisoner cases. Plaintiff has not met his

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burden of establishing exceptional circumstances exist that warrant appointment of counsel because the

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inmate who was helping him is no longer in state custody.

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For the reasons stated,

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IT IS ORDERED:

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Plaintiff’s Motion for Discovery (Dkt. #64) is DENIED.

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2.

Plaintiff’s Motion for an Appointment of Counsel (Dkt. #65) is DENIED.

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Dated this 30th day of July, 2012.

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________________________________________
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PEGGY A. LEEN
EGGY A LEEN
G
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UNITED STATES MAGISTRATE JUDGE

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