Weathers v. Clark County Detention Center Faculty/Agency et al
Filing
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ORDER denying 28 Motion to Appoint Counsel. ; denying 23 Motion to Compel. Signed by Magistrate Judge Peggy A. Leen on 10/24/16. (Copies have been distributed pursuant to the NEF - JM)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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***
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DANIEL T. WEATHERS,
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v.
Case No. 2:15-cv-00027-JAD-PAL
Plaintiff,
ORDER
S. LOUMAKIS, et al.,
(Mot. Compel – ECF No. 23;
Mot. Appt. Counsel – ECF No. 28)
Defendants.
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This matter is before the court on Plaintiff Daniel T. Weathers’ Motion to Compel (ECF
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No. 23), and Motion for Appointment of Counsel (ECF No. 28). These Motions are referred to
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the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and LR IB 1-3 of the Local Rules of Practice.
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The court has considered the Motions, a Response (ECF No. 26) by Defendants Steven Loumakis,
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Maribel Suey, and Russell Adams (“CCDC Defendants”); and Plaintiff’s Reply (ECF No. 31).
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BACKGROUND
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Mr. Weathers is a pro se prisoner currently in the custody of the Nevada Department of
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Corrections and he is proceeding in this action in forma pauperis (“IFP”). On January 6, 2015, he
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commenced this action by filing an IFP Application (ECF No. 1) and proposed complaint. This
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case arises from Weathers’ allegations, pursuant to 28 U.S.C. § 1983, regarding unsafe conditions
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of confinement while he was incarcerated at the Clark County Detention Center (“CCDC”). Upon
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review of the complaint, the court issued an Order (ECF No. 5) instructing Weathers to file an
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amended complaint to correct certain defects in his pleading. Once he did so, see Am. Compl.
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(ECF No. 7), the court issued a Screening Order (ECF No. 8) finding that Weathers stated a
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plausible conditions of confinement claim against the CCDC Defendants. On January 8, 2016, the
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court entered an Order (ECF No. 9) directing service of the Amended Complaint. The CCDC
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Defendants filed their Answer (ECF No. 12) on February 29, 2016.
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The court entered a Scheduling Order (ECF No. 17) directing that discovery be completed
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by June 22, 2016. The CCDC Defendants later filed a Motion to Extend Time (ECF No. 20) to
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conduct discovery, which Mr. Weathers did not oppose. See Pl.’s Resp. (ECF No. 21). The parties
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subsequently filed a Stipulation to Extend Discovery (ECF No. 24). The court granted the
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stipulation and extended the deadlines by 90 days. See Scheduling Order (ECF No. 25). The
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CCDC Defendants also received leave of the court to take Weathers’ deposition. See Defs.’ Mot.
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Take Depo. (ECF No. 19); Order (ECF No. 27). In a separate order, the court granted a second
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Motion to Extend Discovery (ECF No. 33) and extended the deadlines stated in the Scheduling
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Order (ECF No. 25).
DISCUSSION
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I.
MOTION TO COMPEL (ECF NO. 23)
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Plaintiff’s motion seeks to compel a long list of documents related to the incidents that are
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the subject of the Amended Complaint, certain rules and regulations of CCDC and the Las Vegas
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Metropolitan Police Department, and documents showing any disciplinary infractions by the
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CCDC Defendants. Plaintiff asserts that he submitted his document requests on April 23, 2016,
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but had not received a response as of May 28, 2016, the date of his motion. Plaintiff asks the court
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to sanction the CCDC Defendants in the amount of $50 as a reasonable expense he incurred
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because they refused to respond without substantial justification. A copy of the discovery requests
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was not included with the motion. In their Response (ECF No. 26), the CCDC Defendants assert
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that the motion should be denied because Plaintiff failed to certify that he made good faith efforts
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to meet and confer with counsel. The CCDC Defendants received no correspondence from
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Plaintiff regarding their responses to his discovery requests, which were provided to Plaintiff via
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mail on May 17, 2016. Additionally, the Response states that Plaintiff has been provided with
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over 450 documents, some of which are specifically responsive to Plaintiff’s discovery requests.
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In his Reply (ECF No. 31), Plaintiff includes a certification that he “has in good faith conferred or
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attempted to confer with the Defendants in an effort to resolve the dispute without court action.”
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Id. Thus, Plaintiff requests that the court grant his motion.
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“Discovery is supposed to proceed with minimal involvement of the Court.” Cardoza v.
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Bloomin’ Brands, Inc., 141 F. Supp. 3d. 1137, 1145 (D. Nev. 2015) (citation omitted). Litigants
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and their counsel should strive to be cooperative, practical, and sensible, and should seek judicial
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intervention “only in extraordinary situations that implicate truly significant interests.” Id. (citing
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In re Convergent Techs. Securities Litig., 108 F.R.D. 328, 331 (N.D. Cal. 1985)).
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Pursuant to Rule 37 of the Federal Rules of Civil Procedure, a motion to compel discovery
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materials may only be filed when a timely discovery request has been served, the opposing party
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has not responded or has inadequately responded, and the moving party has attempted in good
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faith to resolve any dispute about the adequacy of the discovery responses without the court’s
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intervention. Fed. R. Civ. P. 37(a). The Local Rules of Practice state that discovery motions will
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not be considered unless the movant (1) has made a good-faith effort to meet and confer before
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filing the motion, and (2) includes a declaration setting forth the details and results of the meet-
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and-confer conference about each disputed discovery request. LR 26–7(c). The “meet and confer”
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process requires the parties “to communicate directly and discuss in good faith the issues required
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under the particular rule or court order.” LR IA 1-3(f). Although a telephonic conference is
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preferable, when an incarcerated individual is appearing pro se, the parties may satisfy the meet
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and confer requirement through written communication. LR IA 1-3(f)(1). A party who files a
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discovery motion “must submit a declaration stating all meet-and-confer efforts, including the
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time, place, manner, and participants.” LR IA 1-3(f)(2). Additionally, all motions to compel
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discovery “must set forth in full the text of the discovery originally sought and any response to it.”
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LR 26-7(b).
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A threshold issue in the review of any motion to compel is whether the movant made
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adequate efforts to resolve the dispute without court intervention. As a general rule, parties with
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discovery disputes are required to conduct personal, two-way communication to attempt to resolve
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their disputes without judicial intervention. ShuffleMaster, Inc. v. Progressive Games, Inc., 170
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F.R.D. 166, 171 (D. Nev. 1996). A personal consultation occurs when the parties “present to each
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other the merits of their respective positions with the same candor, specificity, and support during
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the informal negotiations as during the briefing of discovery motions.” Cardoza, 141 F. Supp. 3d.
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at 1145 (citing Nevada Power v. Monsanto, 151 F.R.D. 118, 120 (D. Nev. 1993)). This “meet and
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confer” obligation promotes an open exchange between litigants “to resolve issues by agreement
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or to at least narrow and focus matters in controversy before judicial resolution is sought.”
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ShuffleMaster, 170 F.R.D. at 170. To ensure that parties comply with these requirements, Federal
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Rule of Civil Procedure 37(a)(1) requires that the party bringing a motion to compel discovery
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must “include a certification that the movant has in good faith conferred or attempted to confer
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with the person or party failing to make disclosure or discovery in an effort to obtain it without
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court action.” See also LR 26–7(b). Movants must file certifications that “accurately and
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specifically convey to the court who, where, how, and when the respective parties attempted to
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personally resolve the discovery dispute.” Id. (citing Monsanto, 151 F.R.D. at 120).
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Plaintiff has not complied with the meet and confer requirement imposed by LR 26–7 and
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Rule 37(a)(2)(B). Where one of the parties is a prisoner, the court does not require in-person
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meetings and allows the prisoner and defense counsel to meet and confer by telephone or by
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exchanging letters. Although the format of the meet-and-confer process changes, the substantive
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requirement remains the same—namely, the parties must engage in a good faith effort to meet and
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confer in a good faith effort to resolve the dispute before seeking court intervention. Plaintiff’s
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Reply contains a conclusory certification that he “has in good faith conferred or attempted to
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confer.” This sentence does not provide any details of who he communicated with, where, how,
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or when he attempted to resolve the discovery dispute. Plaintiff has not complied with the meet
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and confer requirement; therefore, his motion lack merit. Additionally, Plaintiff did not attach a
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copy of his discovery requests with his motion as required by LR 26-7(b) and his Reply did not
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address the CCDC Defendants assertion that responses to his discovery requests were provided on
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May 17, 2016. The motion is therefore denied without prejudice.
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II.
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MOTION FOR APPOINTMENT OF COUNSEL (ECF NO. 28)
Plaintiff’s motion asks the court to appoint counsel because his incarceration greatly
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impedes his ability to litigate his claim.
This is particularly so because he is housed in
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administrative segregation. He has limited formal education or knowledge of the law. Plaintiff
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asserts that legal issue in this case are complex and will require significant research and
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investigation; however, his access to the law library is limited and he believes expert testimony is
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needed. Counsel would assist Plaintiff in presenting substantive and procedural issues to the court
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and ease the court’s task of discerning the issues. Plaintiff has received permission to proceed IFP
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in this case and he asserts that he is unable to afford counsel. Plaintiff has made repeated attempts
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to retain counsel without success.
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A litigant in a civil rights action does not have a Sixth Amendment right to appointed
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counsel. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (citing Storseth v. Spellman, 654
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F.2d 1349, 1353 (9th Cir. 1981)); Ivey v. Board of Regents, 673 F.2d 266 (9th Cir. 1982). Pursuant
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to 28 U.S.C. § 1915(e)(1), the court may ask an attorney to represent an indigent litigant. Id. This
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statute does not require that the court appoint counsel or authorize the court to direct payment for
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a litigant’s attorney’s fees, it merely allows the court to request that an attorney represent an
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indigent litigant on a pro bono basis. See Mallard v. United States Dist. Ct., 490 U.S. 296, 304–
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05 (1989); United States v. 30.64 Acres of Land, 795 F.2d 796, 798–804 (9th Cir. 1986).
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The appointment of counsel is limited to cases presenting exceptional circumstances.
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Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004); Aldabe v. Aldabe, 616 F.2d
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1089, 1093 (9th Cir. 1980) (per curiam). The word “exceptional” is defined as “out of the ordinary
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course, unusual,” or “rare.” See Oxford English Dictionary (Oxford Univ. Press 2015). In
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deciding whether to appoint counsel, the court should consider: (1) the likelihood of success of the
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pro se party’s claims on the merits, and (2) the ability of the party to articulate claims pro se in
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light of the complexity of the legal issues involved. Harrington v. Scribner, 785 F.3d 1299, 1309
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(9th Cir. 2015); see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (finding that
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neither factor is controlling); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).
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Here, Plaintiff has not established that exceptional circumstances exist to justify the
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appointment of counsel.
Plaintiff’s Amended Complaint states a colorable conditions of
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confinement claim against the CCDC Defendants. Based on the record, the court is unable to
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assess the likelihood of success of Plaintiff’s claim on its merits. However, the court finds that the
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facts alleged and legal issues raised are not especially complex. Since commencing this action,
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Plaintiff has submitted discovery requests to the CCDC Defendants and numerous motions to the
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court. He has demonstrated sufficient ability to write and articulate his claims. The court
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appreciates that it is difficult for pro se parties to litigate their claims and that almost every pro se
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party would benefit from representation by counsel. However, the court cannot require counsel to
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accept representation on a pro bono basis, and the number of attorneys available to accept pro bono
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appointments is very small. The motion is denied.
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Accordingly,
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IT IS ORDERED: Plaintiff Daniel T. Weathers’ Motion to Compel (ECF No. 23), and
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Motion for Appointment of Counsel (ECF No. 28) are DENIED.
Dated this 24th day of October, 2016.
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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE
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