Robinson v. Sziebert et al

Filing 62

ORDER granting 56 Motion for Extension of Time to Complete Discovery: all Discovery shall be completed by 2/1/17; and any dispositive motion shall be filed and served on or before 4/1/17. Plaintiff's motion to Compel 57 is denied. Plaintiff's motion for appointment of counsel 57 is denied without prejudice. Signed by Magistrate Judge David W. Christel.(CMG)(cc mailed to Plaintiff)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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CHARLES ROBINSON,

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Plaintiff,
v.

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LESLIE SZIEBERT,
Defendant.

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CASE NO. 3:15-CV-05555-RJB-DWC
ORDER ON PLAINTIFF’S MOTION
FOR AN EXTENSION OF TIME TO
COMPLETE DISCOVERY AND ON
PLAINTIFF’S MOTION TO COMPEL
DISCOVERY

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The District Court has referred this action, filed pursuant to 42 U.S.C. § 1983, to United

17 States Magistrate Judge David W. Christel. Before the Court is Plaintiff’s Motion for Extension
18 of Time (Dkt. 56) and Plaintiff’s Motion to Compel Discovery (Dkt. 57).
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I.

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Plaintiff is a civilly-committed detainee at the Washington State Special Commitment

Motion to Compel Discovery

21 Center (“SCC”). Dkt. 6, p. 1, ¶ 8.2. As Plaintiff is involuntarily committed at the SCC, Plaintiff
22 is unable to leave the confines of the SCC to conduct discovery. Plaintiff alleges he is unable to
23 afford a court reporter to transcribe any depositions. Dkt. 57, p. 3. Plaintiff also alleges he is
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ORDER ON PLAINTIFF’S MOTION FOR AN
EXTENSION OF TIME TO COMPLETE
DISCOVERY AND ON PLAINTIFF’S MOTION
TO COMPEL DISCOVERY - 1

1 unable to record the audio from any deposition he were to take, as SCC residents are prohibited
2 from owning or otherwise having access to audio recording devices. Dkt. 57, p. 3. Plaintiff has
3 moved for an order pursuant to Rule 37 of the Federal Rules of Civil Procedure: 1) requesting to
4 depose Defendant Leslie Sziebert and non-party Galina Dixon; 1 and 2) “grant[ing] permission”
5 for Plaintiff to bring a recording device into the SCC in order to record the depositions of
6 Defendant Sziebert and Dixon. Dkt. 57, p. 4. 2
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First, under Rule 37, a party may move to compel a deponent to answer a question, or to

8 compel a party to attend their own deposition. Fed. R. Civ. P. 37(a)(3) & 37(d). But, Plaintiff
9 attached a letter from Defendant Sziebert’s counsel, Gregory G. Silvey, indicating he intended to
10 “work with [Plaintiff] to schedule an agreeable time” to take Defendant Sziebert’s deposition,
11 and that Plaintiff had the obligation to make arrangements for the deposition in compliance with
12 the Federal Rules of Civil Procedure. Dkt. 57, p. 17. As for Ms. Dixon, Plaintiff has offered no
13 evidence whatsoever that Ms. Dixon is refusing to cooperate in the scheduling of her deposition,
14 or otherwise refusing to attend a deposition for which she was properly subpoenaed. 3 To the
15 extent Plaintiff is seeking to compel either Defendant Sziebert or Ms. Dixon to attend their own
16 depositions, such a motion is premature.
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Galina Dixon, ARNP is a former defendant in this matter. Plaintiff’s claims against her
were dismissed without prejudice by order of the Court on October 27, 2016. Dkt. 55.
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Plaintiff indicates someone named David Dearinger is in possession of the recording
devices, and is able to bring them to the SCC. David Dearinger is not a party to this case.
Further, his relationship to the parties, his qualifications to be an impartial custodian of the tape
recorders, his clearance to visit the SCC, and a host of other questions pertaining to his identity,
fitness, and security are unanswered throughout Plaintiff’s briefing. To the extent Plaintiff is
asking the Court to permit Mr. Dearninger to enter onto SCC grounds, such a request is denied.
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Though Plaintiff indicates in his motion he would like to take the deposition of Ms.
Dixon and Defendant Sziebert on November 30, 2016, Plaintiff does not provide any evidence he
has noticed the depositions of either Ms. Dixon or Defendant Sziebert as he was required to do
under Rule 30(b).
ORDER ON PLAINTIFF’S MOTION FOR AN
EXTENSION OF TIME TO COMPLETE
DISCOVERY AND ON PLAINTIFF’S MOTION
TO COMPEL DISCOVERY - 2

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Second, Plaintiff couches his request for a tape recorder as motion to compel discovery

2 under Federal Rule of Civil Procedure 37(a)(2); however, Plaintiff’s motion cannot properly be
3 considered a motion to compel. Plaintiff is not requesting Defendant Sziebert or Ms. Dixon be
4 compelled to disclose facts, produce discovery, or answer deposition questions. Instead, Plaintiff
5 is requesting the Court compel a non-party (namely, the SCC itself) to alter its security protocols
6 to permit Plaintiff to have access to a tape recorder on SCC grounds, so that he may comply with
7 his obligations under Rule 30 to procure some form of transcription or recording of an oral
8 deposition. Rule 37(a)(2) does not contemplate such relief, and Plaintiff has provided no
9 authority to the Court suggesting otherwise.
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In any event, Plaintiff has not demonstrated his proposed relief is necessary or even

11 appropriate. Defendant Sziebert proposed at least one less-burdensome alternative to Plaintiff’s
12 requested relief: namely, Plaintiff may conduct the deposition via telephone, with the deponent
13 and the recording device located outside of the SCC. See Fed. R. Civ. P. 30(b)(4)(“the parties
14 may stipulate—or the court may on motion order—that a deposition be taken by telephone or
15 other remote means.”). As Plaintiff indicates a tape recorder is available, just not accessible to
16 Plaintiff while he is confined at the SCC (see Dkt. 57, p. 4), Defendant Sziebert’s proposal would
17 seem to adequately address Plaintiff’s need to record depositions in compliance with Fed. R. Civ.
18 P. 30.
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Finally, Defendant Sziebert’s proposed solution could have been achieved easily enough

20 through a good faith effort to meet and confer on discovery matters. The Court notes Plaintiff did
21 not indicate he had made arrangements for a tape recorder until he filed his motion to compel;
22 for his part, Defendant Sziebert did not propose a telephonic deposition until he filed his
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ORDER ON PLAINTIFF’S MOTION FOR AN
EXTENSION OF TIME TO COMPLETE
DISCOVERY AND ON PLAINTIFF’S MOTION
TO COMPEL DISCOVERY - 3

1 response to Plaintiff’s motion. See Dkt. 57, pp. 14, 17. In the future, the Court directs both
2 parties attempt a more robust discussion of discovery disputes prior to seeking judicial relief.
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Accordingly, Plaintiff’s Motion to Compel is denied.

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II.

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Plaintiff also seeks an order appointing counsel, or, in the alternative, stand-by counsel.

Motion for Appointment of Counsel

6 Dkt. 57, p. 4.
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No constitutional right to appointed counsel exists in a Section 1983 action. Storseth v.

8 Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981); see United States v. $292,888.04 in U.S.
9 Currency, 54 F.3d 564, 569 (9th Cir. 1995) (“[a]ppointment of counsel under this section is
10 discretionary, not mandatory”). However, in “exceptional circumstances,” a district court may
11 appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1) (formerly 28
12 U.S.C. § 1915(d)). Rand v. Roland, 113F.3d 1520, 1525 (9th Cir. 1997), overruled on other
13 grounds, 154 F.3d 952 (9th Cir. 1998). To decide whether exceptional circumstances exist, the
14 Court must evaluate both “the likelihood of success on the merits [and] the ability of the
15 [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues involved.”
16 Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (quoting Weygandt v. Look, 718
17 F.2d 952, 954 (9th Cir. 1983)). A plaintiff must plead facts showing he has an insufficient grasp
18 of his case or the legal issues involved and an inadequate ability to articulate the factual basis of
19 his claims. Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004).
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Here, Plaintiff argues counsel should be appointed for him due to the logistical

21 difficulties he has encountered in attempting to conduct and record depositions. But, Plaintiff has
22 not demonstrated this case involves complex facts or law. Further, a review of Plaintiff’s
23 pleadings, motions, and other submissions in the record reflects Plaintiff understands the legal
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ORDER ON PLAINTIFF’S MOTION FOR AN
EXTENSION OF TIME TO COMPLETE
DISCOVERY AND ON PLAINTIFF’S MOTION
TO COMPEL DISCOVERY - 4

1 issues involved in his claim, and has been able to adequately articulate a factual basis for his
2 claims. Accordingly, Plaintiff’s Motion is denied without prejudice.
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III.

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Plaintiff requests the deadline for the completion of discovery be extended to February 1,

Motion for an Extension of Time

5 2017. Dkt. 56. Defendant Leslie Sziebert has no objection to the proposed extension. Dkt. 59.
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After consideration of the record, Plaintiff’s Motion is granted. The Amended Pretrial

7 Scheduling Order (Dkt. 15, 36) is amended as follows:
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(1)

All discovery shall be completed by February 1, 2017.

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(2)

Any dispositive motion shall be filed and served on or before April 1, 2017.

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The Court also notes this is Plaintiff’s third request for an extension of time to complete

11 discovery. Thus, further extensions of time to complete discovery will be granted only upon a
12 showing of good cause.
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Dated this 9th day of December, 2016.

A

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David W. Christel
United States Magistrate Judge

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ORDER ON PLAINTIFF’S MOTION FOR AN
EXTENSION OF TIME TO COMPLETE
DISCOVERY AND ON PLAINTIFF’S MOTION
TO COMPEL DISCOVERY - 5