Roberts v. Snohomish County et al

Filing 110

ORDER denying plaintiff's 103 Motion for Reconsideration ; granting in part plaintiff's 104 Motion to Stay; RENOTING defendants' 99 MOTION for Summary Judgment : Noting Date 12/1/2017, signed by Hon. James P. Donohue. **5 PAGE(S), PRINT ALL**(Joe Roberts, Prisoner ID: 394089)(SWT)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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JOE J.W. ROBERTS, JR.,
Plaintiff,

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v.
SNOHOMISH COUNTY, et al.,

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ORDER DENYING PLAINTIFF’S
MOTION FOR RECONSIDERATION
AND RE-NOTING DEFENDANTS’
SUMMARY JUDGMENT MOTION

Defendants.

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Case No. C16-1464-TSZ-JPD

This is a civil rights action brought under 42 U.S.C. § 1983. This matter comes before
the Court at the present time on plaintiff’s motion for reconsideration of this Court’s prior Order
denying his motion regarding witness issues, and on plaintiff’s motion to stay or dismiss
defendants’ pending summary judgment motion. The Court, having considered plaintiff’s
motions, and the balance of the record, hereby finds and ORDERS as follows:
(1)

Plaintiff’s motion for reconsideration (Dkt. 103) is DENIED. Plaintiff seeks

reconsideration of this Court’s August 10, 2017 Order denying his motion regarding witness
issues. (Dkt. 96.) In that motion, plaintiff detailed a number of impediments he faced in
attempting to effectively litigate this action, asserted that those impediments violated his right to
due process, and asked that the Court reconsider its previous denials of his requests for

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ORDER DENYING PLAINTIFF’S
MOTION FOR RECONSIDERATION - 1

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appointment of counsel. (See Dkt. 91.) The Court denied plaintiff’s motion, concluding that he

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had not established any violation of his due process rights arising out of the Court’s denials of

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his prior requests for counsel, and he had not demonstrated the existence of exceptional

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circumstances sufficient to warrant the appointment of counsel. (Dkt. 96.)

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The Court will ordinarily deny motions for reconsideration “in the absence of a showing

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of manifest error in the prior ruling or a showing of new facts or legal authority which could not

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have been brought to its attention earlier with reasonable diligence.” LCR 7(h)(1). Plaintiff has

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not demonstrated any error in the Court’s prior ruling, nor has he identified new facts or legal

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authority which would justify a different result. Plaintiff largely reiterates in the instant motion

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arguments made in support of his multiple prior requests for appointment of counsel. While

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plaintiff places particular emphasis this time on the challenges presented by his mental health

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issues, the fact remains that the Court has considered these arguments previously and has

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concluded that plaintiff’s circumstances do not warrant the appointment of counsel. As the

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Court has previously noted, plaintiff has shown ample ability to litigate this action without the

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assistance of counsel and, thus, any motion to reconsider the denial of appointment of counsel

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must be denied.

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(2)

Plaintiff’s motion to stay or dismiss defendant’s summary judgment motion (Dkt.

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104) is GRANTED in part. Plaintiff asserts in his motion that the Washington Department of

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Corrections has denied him access to his legal work which has prevented him from properly

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researching and participating in this litigation. (See id. at 2-3.) Plaintiff also asserts that there is

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discovery he has yet to receive from defendants and that he has yet to finish discovery. (See id. at

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5.) Defendants object to plaintiff’s motion to stay, arguing that plaintiff has intentionally refused

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ORDER DENYING PLAINTIFF’S
MOTION FOR RECONSIDERATION - 2

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discovery when presented to him, and has failed to show that he has not had adequate time to

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obtain discovery or has diligently attempted to obtain discovery. (See Dkt. 105 at 1.)

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To the extent plaintiff asserts that he has not yet finished discovery, he has not

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established any entitlement to relief. The discovery deadline in this matter is October 13, 2017.

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Any discovery which has not yet been initiated will not be permitted as the discovery deadline

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has already been extended twice in this matter, and plaintiff has not shown good cause for yet

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another extension. (See Dkts. 25, 51, 63 and 93.)

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To the extent plaintiff complains about discovery which he has requested but has not yet

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received, it appears that plaintiff is referring to 3000 pages of materials which were compiled by

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defendants in response to plaintiff’s second set of discovery requests. Those materials were sent

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to plaintiff on a DVD in June 2017, but the mail was rejected by the Washington State

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Penitentiary (WSP) mailroom because it contained an unauthorized CD and was ultimately

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returned to defendants.1 (See Dkt. 108-1 at 32-41.) Defendants declined plaintiff’s request to

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print the 3000 pages of documents and mail them to him, but offered to send the DVD containing

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the documents to a representative designated by plaintiff who could make arrangements to print

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the documents of interest. (See Dkt. 106 at 2; Dkt. 106-2.) Plaintiff apparently never designated

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any such representative. (Dkt. 106 at 3.)

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According to defendants, the documents responsive to plaintiff’s second discovery

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requests consist almost entirely of the personnel files of the individually named defendants, prior

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personnel complaints made against defendants (none of which include an allegation of excessive

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Pursuant to Washington Department of Corrections policy, plaintiff is precluded from receiving
unauthorized CDs. (See Dkt. 108-1 at 34.) In addition, WSP apparently precludes inmates from accessing a
computer that can play DVDs. (Dkt. 106-2.)

ORDER DENYING PLAINTIFF’S
MOTION FOR RECONSIDERATION - 3

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force), and docket reports of previous excessive force lawsuits against Snohomish County. (See

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Dkt. 106 at 2.) Also included in those discovery responses are three pages of plaintiff’s

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Snohomish County Jail visitation log which show the visits by Katrina Woolridge, and a brief

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demonstration video of the OC canister used by defendant Acheampong in the incident at issue

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here which shows that the OC spray is reddish-orange in color and not clear. (Id. at 2-3.)

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Plaintiff has not demonstrated that any of these materials are likely to affect the outcome of

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summary judgment and it would therefore serve no purpose to allow plaintiff additional time to

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respond to the pending summary judgment motion based on their absence. This is particularly so

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where defendants have provided plaintiff an option for obtaining the materials, but plaintiff has

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made no attempt to avail himself of this option.
Of greatest concern to the Court is plaintiff’s representation that he has not had access to

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his personal legal materials for much of the time he has been in Washington Department of

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Corrections custody. (See Dkt. 104 at 2-4.) Plaintiff has produced evidence demonstrating that

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he has been persistent in attempting to locate and gain access to those materials, and that at least

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some of the materials were not made available to him until after the time for him to respond to

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defendants’ summary judgment motion had passed. (See Dkt. 104 at 3, 28-35; Dkt. 108-1 at 1-

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30.) The Court acknowledges that plaintiff’s motion to stay defendants’ summary judgment

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contains a lengthy section in which he alleges factual discrepancies between his version of events

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and defendants’ evidence, similar to what might be included in a typical response to a summary

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judgment motion. However, the Court is not satisfied that plaintiff has had a full and fair

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opportunity to respond to defendants’ motion given his lack of access to his personal legal

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materials which, according to plaintiff, contain research notes, case law, and some discovery.

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ORDER DENYING PLAINTIFF’S
MOTION FOR RECONSIDERATION - 4

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(See Dkt. 104 at 2-4.) The Court therefore deems it appropriate to re-note defendants’ summary

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judgment motion to allow plaintiff additional time to respond.

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(3)

Accordingly, defendants’ motion for summary judgment (Dkt. 99) is RE-NOTED

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on the Court’s calendar for consideration on December 1, 2017. Plaintiff’s response to

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defendants’ motion is therefore due not later than November 27, 2017. Plaintiff is advised that

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no further extensions will be granted and that the Court will not entertain any further requests for

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additional discovery or appointment of counsel.

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(4)

The Clerk is directed to send copies of this Order to plaintiff, to counsel for

defendants, and to the Honorable Thomas S. Zilly.
DATED this 6th day of December, 2017.

A

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JAMES P. DONOHUE
Chief United States Magistrate Judge

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ORDER DENYING PLAINTIFF’S
MOTION FOR RECONSIDERATION - 5