Zabala v. Haley et al

Filing 33

ORDER denying 24 Motion to Appoint Counsel; denying without prejudice 26 Motion to Compel. Signed by Magistrate Judge Peggy A. Leen on 1/21/2015. (Copies have been distributed pursuant to the NEF - DKJ)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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HANK ZABALA,

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Plaintiff,

ORDER

v.

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Case No. 2:13-cv-00393-RFB-PAL

(Mtn to Appoint Counsel – Dkt. #24)
(Mtn to Compel – Dkt. #26)

MIKE HALEY, et al.,
Defendants.

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This matter is before the court on Plaintiff Hank Zabala’s Motion to Appoint Counsel

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(Dkt. #24) and Motion to Compel (Dkt. #25). Plaintiff is a prisoner proceeding in this civil

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rights action pro se and in forma pauperis. The court has considered the Motions, Defendants

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Sheriff Mike Haley’s, Deputy Heather Balaam’s, and Deputy Joshua Jenkins’ Oppositions (Dkt.

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##25, 27).

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I.

Motion to Appoint Counsel (Dkt. #24).

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Plaintiff seeks an order appointing counsel to represent him. He asserts that he cannot

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afford counsel, and his incarceration will greatly limit his ability to litigate this case. In addition,

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the issues in this case are complex and will require significant research and investigation. He has

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no access to the law library and limited knowledge of the law. He needs counsel to assist him in

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responding to and serving discovery and presenting evidence and cross examining witnesses at

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trial. Plaintiff has attached correspondence between him and the law librarian in which the

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librarian explains various procedural matters to Plaintiff.

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Defendants oppose the motion, asserting that Plaintiff has already had an earlier Motion

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to Appoint Counsel (Dkt. #15) denied by the court, and Plaintiff has not established he is entitled

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to appointed counsel.

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The court has already denied Plaintiff’s previous Motion to Appoint Counsel. See Order

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(Dkt. #25). Plaintiff has not provided any new reason or changed circumstances to appoint

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counsel. The court fully appreciates it is difficult for a lay person to represent themselves, and

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why Plaintiff would like counsel. However, Plaintiff as the court previously explained, Plaintiff

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is not entitled to appointment of counsel in the absence of extraordinary circumstances. Making

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repeated requests for the same relief is an abusive litigation tactic that taxes the resources of the

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court and all of the parties to this lawsuit. Rule 11 of the Federal Rules of Civil Procedure

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provides that sanctions may be imposed on an unrepresented party who signs a paper that is

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either filed with the court for an improper purpose or is frivolous. See Nugget Hydroelectric,

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L.P. v. Pacific Gas & Elec. Co., 981 F.2d 429, 439 (9th Cir. 1992, cert. denied, 508 U.S. 908

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(1993) (citing Townsend v. Holman Consulting Corp., 929 F.3d 1358. 1362 (9th Cir. 1990) (en

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banc)). In Nugget, the Ninth Circuit upheld the trial court’s imposition of Rule 11 sanctions

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because a party’s second motion to compel largely duplicated the first. Plaintiff is warned that

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continued motion practice requesting relief that has already been denied or making frivolous,

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unsupported requests may result in the imposition of sanctions. For the reasons set forth in the

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court’s previous Order (Dkt. #17), Plaintiff’s Motion to Appoint Counsel is denied.

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II.

Motion to Compel (Dkt. #26).

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Plaintiff seeks an order compelling Defendants to provide him the following: (a) records

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documenting Deputy Evans’ excessive use of force on inmates; (b) records documenting Plaintiff

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was denied visitation between August 2011 and July 2012 from Jennifer Lopez, Alexis Lauren

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Holmes, and Camille Jones; (c) Plaintiff’s statements and reports of excessive force filed in

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January 2011 against Evans, including photographs and video recordings; (d) all evidence that

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Plaintiff was a “shot caller” while detained in the Washoe County Sheriff’s Office; and (e) all

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grievances Plaintiff submitted to Defendant Haley while in disciplinary segregation. Plaintiff

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asserts he requested these documents from Defendants, but they have not produced them.

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Citing Nevada Rule of Civil Procedure 37, Defendants respond that Plaintiff has not met

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and conferred before filing the Motion to Compel. Therefore, the motion should be denied.

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Defendants do not address the substance of Plaintiff’s motion. Instead, they represent that
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defense counsel “will attempt within a reasonable time to arrange a telephonic conference with

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Plaintiff” to discuss the matter.

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Local Rule 26-7(b) provides that discovery motions will not be considered unless a

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statement of the movant is attached certifying that after personal consultation and sincere effort

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to do so, the parties were unable to resolve the discovery dispute without court intervention. See

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LR 26-7(b). Plaintiff has not complied with this rule. In addition, it appears defense counsel has

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now attempted to resolve this matter with Plaintiff. The court expects defense counsel to comply

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with its discovery obligations without the necessity of further motion practice and to work with

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Plaintiff in a good faith effort to provide him with information discoverable within the meaning

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of Fed. R. Civ. P. 26(b)(1).

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Accordingly,

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IT IS ORDERED:

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1. Plaintiff’s Motion to Appoint Counsel (Dkt. #24) is DENIED.

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2. Plaintiff’s Motion to Compel (Dkt. #26) is DENIED WITHOUT PREJUDICE.

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Dated this 21st day of January, 2015.

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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