Sutton v. Washington State Department of Corrections et al
Filing
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ORDER Denying Plaintiff's 54 Motion for Appointment of Counsel and Granting Defendants' 49 Motion for Protective Order. Signed by Magistrate Judge Mary K. Dimke. (MO, Courtroom Deputy)**9 PAGE(S), PRINT ALL**(Jason Sutton, Prisoner ID: 730954)
FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
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Nov 07, 2016
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SEAN F. MCAVOY, CLERK
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF WASHINGTON
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JASON LEE SUTTON,
NO: 4:15-cv-05123-MKD
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Plaintiff,
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v.
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BERNARD WARNER, DONALD
HOLBROOK, STEVEN FLEENOR,
and RACHEL SMITH,
ORDER DENYING PLAINTIFF’S
MOTION FOR APPOINTMENT OF
COUNSEL AND GRANTING
DEFENDANTS’ MOTION FOR
PROTECTIVE ORDER
ECF Nos. 49, 54
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Defendants.
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BEFORE THE COURT are the following motions: (1) Plaintiff’s Motion for
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Appointment of Counsel (ECF No. 54); and (2) Defendants’ Motion for Protective
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Order (ECF No. 49). These matters were submitted for consideration without oral
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argument. The Court has reviewed the briefing, the record, and the files herein,
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and is fully informed.
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ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL AND
GRANTING DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER - 1
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DISCUSSION
A. Plaintiff’s Motion for Appointment of Counsel (ECF No. 54)
Plaintiff, who is proceeding pro se and in forma pauperis, has moved for
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appointment of counsel pursuant to 28 U.S.C. § 1915. ECF No. 54. Plaintiff
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contends that he needs an attorney to assist him in the discovery process and
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drafting summary judgment pleadings. ECF No. 54 at 1-2. Section 1915(e)(1)
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vests a district court with discretion to “request an attorney to represent any person
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unable to afford counsel.” 28 U.S.C. § 1915(e)(1). Appointment of counsel under
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28 U.S.C. § 1951(e)(1) is reserved for “exceptional circumstances.” Terrell v.
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Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). In evaluating whether “exceptional
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circumstances” exist, the Court considers “the likelihood of success on the merits
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as well as the ability of the [plaintiff] to articulate his claims pro se in light of the
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complexity of the legal issues involved.” Weygandt v. Look, 718 F.2d 952, 954
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(9th Cir. 1983); see also Terrell, 935 F.2d at 1017.
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In his motion, Plaintiff has made no effort to address the “exceptional
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circumstances” requirement. Plaintiff contends, without explanation, “that this
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case will become complex, if not already complex.” ECF No. 54 at 3. Having
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reviewed the file, the Court concludes that exceptional circumstances are not
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present. This is not a particularly complex case and Plaintiff has demonstrated
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a strong ability to articulate his claims pro se. Plaintiff has engaged in motion
ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL AND
GRANTING DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER - 2
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practice related to subpoenas and depositions (see, e.g., ECF No. 33, 38, 44).
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At this juncture, the Court finds that Plaintiff has demonstrated a reasonable
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ability to articulate his claims.
While Plaintiff’s claims have survived initial screening, it does not appear
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(at least at this early stage of the proceedings) that they are exceptionally
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meritorious. The Court is unpersuaded that exceptional circumstances exist at
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this time which would warrant the appointment of counsel.
Plaintiff’s Motion, ECF No. 54, is denied with leave to re-file at a later
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time.
Plaintiff further states “[b]ecause Sutton believes he has located an
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attorney to assist him in the prosecution of this case, Sutton needs an Order
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from this Court, granting permission for the below attorney to get involved in
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this civil action.” ECF No. 54 at 2. Plaintiff contends that an attorney from the
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Human Rights Defense Center, in Lake Worth, Florida, may be interested in
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assisting Plaintiff. If this attorney is engaged by Plaintiff, either retained or
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agrees to represent Plaintiff pro bono, the attorney needs to follow the local
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court rules set forth for entering a notice of appearance. No court order is
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necessary.
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ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL AND
GRANTING DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER - 3
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B. Defendants’ Motion for Protective Order (ECF No. 49)
Defendants seek a protective order, relieving them of the obligation to
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comply with Plaintiff’s discovery request that Plaintiff or his designee be
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allowed to video-record mailroom operations at the prison at Walla Walla,
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along with recording the process of “rejecting incoming/outgoing U.S. mail.”
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ECF No. 49 at 2.
Defendants raise two objections to Plaintiff’s request. First, the
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mailroom is “outside the secured perimeter” (outside prison walls), which they
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allege would require “unduly burdensome logistical planning” and consume an
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inordinate amount of staff resources in order to have correctional officers
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inspect the entire mail room and inventory and secure/remove any dangerous
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items before Plaintiff could enter the area, have two guards transport Plaintiff
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with the requisite security measures, and have two guards monitor Plaintiff
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while in the mailroom. ECF No. 49 at 3 (citing Gonzalez Decl., ECF No. 50 at
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2-3).
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Second, Defendants contend the requested inspection exposes the
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Washington State Penitentiary and other DOC prisons to significant security
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risks, including: allowing Plaintiff to gather information regarding how mail is
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inspected, the amount of time spent inspecting each piece of mail, the type of
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testing (and the random nature of such testing) that the mailroom conducts on
ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL AND
GRANTING DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER - 4
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incoming/outgoing mail for contraband (e.g. drugs, meth-soaked paper, coded
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messages, gang communications, etc.), and allowing Plaintiff to identify and
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learn about the overall systems to determine the system’s strengths and
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weaknesses. ECF No. 49 at 3 (citing Gonzalez Decl., ECF No. 50 at 3-4).
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Defendants are concerned this sensitive data could be spread among the other
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inmates, which could lead to exploitation of the processes by inmates and
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introduce contraband into the prison. Id.
Defendants further contend that Plaintiff’s request is excessive,
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irrelevant, and not proportional to the needs of this case. ECF No. 49 at 2.
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Specifically, Plaintiff’s claim involves two outgoing letters that were rejected
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by the mailroom in 2015, and alleged retaliation by prison staff. ECF No. 49 at
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2-4.
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Federal Rule of Civil Procedure 34 permits a party to “serve on any other
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party a request within the scope of Rule 26(b) ... to permit entry onto designated
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land or other property possessed or controlled by the responding party, so that the
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requesting party may inspect, measure, survey, photograph, test, or sample the
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property or any designated object or operation on it.” Fed. R. Civ. P. 34(a)(2).
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However, the Court “may, for good cause, issue an order to protect a party
or person from annoyance, embarrassment, oppression, or undue burden or
expense,” including one or more of the following: (1) prohibiting disclosure or
ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL AND
GRANTING DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER - 5
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discovery; (2) conditioning disclosure or discovery on specified terms; (3)
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preventing inquiry into certain matters; or (4) limiting the scope of disclosure or
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discovery to certain matters. Fed. R. Civ. P. 26(c)(1); see also Razo v. Timec Co.,
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Inc., No. 15-CV-03414-MEJ, 2016 WL 1623938, at *2 (N.D. Cal. Apr. 21, 2016).
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Following the recent amendments to the Federal Rules of Civil Procedure in
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December 2015, Rule 26 now provides that a party may obtain discovery
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“regarding any nonprivileged matter that is relevant to any party's claim or defense
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and proportional to the needs of the case[.]” Fed. R. Civ. P. 26(b)(1). Factors that
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must be considered in weighing proportionality include “the importance of the
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issues at stake in the action, the amount in controversy, the parties’ relative access
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to relevant information, the parties’ resources, the importance of the discovery in
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resolving the issues, and whether the burden or expense of the proposed discovery
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outweighs its likely benefit.” Razo v. Timec Co., Inc., No. 15-CV-03414-MEJ,
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2016 WL 1623938, at *2 (N.D. Cal. Apr. 21, 2016). Discovery need not be
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admissible in evidence to be discoverable. Id.; see also Salazar v. McDonald's
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Corp., No. 14-CV-02096-RS (MEJ), 2016 WL 736213, at *2 (N.D. Cal. Feb. 25,
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2016).
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Moreover, Rule 26(c) confers “broad discretion on the trial court to decide
when a protective order is appropriate and what degree of protection is required.”
See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984). To obtain a protective
ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL AND
GRANTING DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER - 6
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order, the party resisting discovery or seeking limitations must, under Rule 26(c),
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show good cause for its issuance. Meyer v. Schwarzenegger, No. CIVS06-
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2584LKKGGHP, 2009 WL 1020838 at *1 (E.D. Cal. Apr. 14, 2009). “For good
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cause to exist, the party seeking protection bears the burden of showing specific
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prejudice or harm will result if no protective order is granted.” Phillips v. Gen.
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Motors Corp., 307 F.3d 1206, 1210–11 (9th Cir. 2002); Meyer, No. CIVS06-
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2584LKKGGHP, 2009 WL 1020838 at *1. “Broad allegations of harm,
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unsubstantiated by specific examples or articulated reasoning, do not satisfy the
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Rule 26(c) test.” Id. (citing Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470,
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476 (9th Cir. 1992)).
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Where otherwise discoverable information would pose a threat to the safety
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and security of the prison or infringe upon a protected privacy interest, a need may
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arise for the Court to balance interests in determining whether disclosure should
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occur. See Fed. R. Civ. P. 26(c); Bishop v. Lopez, No. 115CV00273LJOSABPC,
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2016 WL 1587080, at *1 (E.D. Cal. Apr. 20, 2016), reconsideration denied, No.
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115CV00273LJOSABPC, 2016 WL 2625917 (E.D. Cal. May 9, 2016); see also
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Garcia v. Clark, No. 1:10-CV-00447-LJO-DLB PC, 2012 WL 1232315, at *6 n.5
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(E.D. Cal. Apr. 12, 2012) (noting inmate’s entitlement to inspect discoverable
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information may be accommodated in ways which mitigate institutional safety
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concerns); Robinson v. Adams, No. 1:08-cv-01380-AWI-BAM PC, 2012 WL
ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL AND
GRANTING DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER - 7
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912746, at *2-3 (E.D. Cal. Mar. 16, 2012) (issuing protective order regarding
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documents containing information which implicated the safety and security of the
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prison); Orr v. Hernandez, No. CV-08-0472-JLQ, 2012 WL 761355, at *1-2 (E.D.
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Cal. Mar. 7, 2012) (addressing requests for protective order and for redaction of
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information asserted to risk jeopardizing safety and security of inmates or the
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institution if released).
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Defendants show good cause for issuance of a protection order. The
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identified security concerns are clearly articulated and support limitations on the
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type of discovery that Plaintiff seeks, i.e., Plaintiff’s ability to videotape and
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observe the prison’s mail room procedures.
Here, the Court finds that Plaintiff’s proposed discovery, inspection of the
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prison mail room, exceeds the proportional needs of the case, given the narrow
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scope of Plaintiff’s claim. Moreover, Plaintiff has alternative means available to
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him to obtain relevant information regarding the handling of prison mail, including
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requesting document production regarding the mail room procedures,
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interrogatories, and seeking deposition testimony of individuals who work in the
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mailroom.
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ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL AND
GRANTING DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER - 8
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Defendants’ motion for a protective order, ECF No. 49, is granted.
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IT IS SO ORDERED. The Clerk of Court shall enter this Order, and
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forward copies to the parties.
DATED November 7, 2016.
s/ Mary K. Dimke
Mary K. Dimke
United States Magistrate Judge
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ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL AND
GRANTING DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER - 9
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