Wilkins v. Alameda County Sheriff's Office et al

Northern District of California, cand-4:2015-cv-01706

Disregard, Error, See Entry {{117}} ORDER OF REFERENCE TO MAGISTRATE JUDGE ROBERT M. ILLMAN FOR DISCOVERY; ADDRESSING PLAINTIFF'S MOTION TO RECALL MAGISTRATE JUDGE VADAS' JUNE 15, 2017 ORDER AND REQUEST FOR APPOINTMENT OF COUNSEL; AND SETTING NEW BRIEFING SCHEDULE by Judge Yvonne Gonzalez Rogers. Modified on 3/1/2018 Modified on 3/1/2018

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1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 RUDY WILKINS, 4 Case No. 15-cv-01706-YGR (PR) Plaintiff, 5 ORDER OF REFERENCE TO MAGISTRATE v. JUDGE ROBERT M. ILLMAN FOR 6 DISCOVERY; ADDRESSING PLAINTIFF'S MARIA MAGAT, et al., MOTION TO RECALL MAGISTRATE JUDGE 7 VADAS'S JUNE 15, 2017 ORDER AND Defendants. REQUEST FOR APPOINTMENT OF COUNSEL; 8 AND SETTING NEW BRIEFING SCHEDULE 9 I. BACKGROUND 10 This is a pro se prisoner civil rights action. On June 2, 2017, the Court referred this matter 11 to Magistrate Judge Nandor J. Vadas for all discovery matters, including Plaintiff's motions to 12 compel filed on October 14, 2016, October 27, 2016, and February 2, 2017. See Dkt. 94. Northern District of California United States District Court 13 The following background is taken from Magistrate Judge Vadas's June 15, 2017 Order, in 14 which he resolved Plaintiff's October 14, 2016 and October 27, 2016 motions: 15 During August 2016, Plaintiff directed interrogatories and requests for production to Defendants Dr. Maria Magat, Dr. Ifei 16 Chen, Dr. Tha Khin, and Dr. Glenda Newell. (Doc. 55, at 2:9-11; Doc. 57, at 2:7-9.) Defendants responded to the interrogatories on 17 September 14 and responded to the requests for production on September 29. (Doc. 55, at 4-31.) 18 In a letter dated September 27, Plaintiff demanded further 19 interrogatory responses, asserting Defendants "[did] not answer any of the interrogatories' subparts." (Doc. 55, at 33.) When defense 20 counsel received the letter dated September 27, she responded on October 6 that Plaintiff's letter was unintelligible because the 21 interrogatories contained no "subparts." She asked Plaintiff to clarify and to identify the interrogatory responses at issue. (Doc. 59, 22 Grigg Decl., ¶4 & Exh. B.) Plaintiff never did so. 23 Around October 7, Plaintiff sent Defense Counsel another letter demanding further Case interrogatory answers. (Doc. 58, 24 Grigg Decl., ¶4 & Exh. B.) In it, he did not identify the interrogatories he contended required further response. Id. He also 25 did not explain why further response to any interrogatory was warranted—except to again insist Defendants had not answered 26 unspecified interrogatory "subparts." 27 On October 14, Plaintiff moved to compel further interrogatory responses, without responding to defense counsel's 28 October 6 letter. (Doc. 55.) On October 27, Plaintiff moved to compel production of documents and request for admissions. (Doc. 1 57.) He did not attempt to confer about the issues raised therein before filing it. (Doc. 58, Grigg Decl., ¶7.) On October 28, 2016, 2 Defendants filed a response to both of Plaintiff's motions to compel. (Doc. 58.) Plaintiff filed a reply in the form of a Brief in Support of 3 Motion to Compel on November 14, 2016. (Doc. 62.) 4 Dkt. 96 at 1-2. 5 Magistrate Judge Vadas then pointed out that the Civil Local Rules for the United States 6 District Court for Northern District of California provided in part as follows: 7 37-2. Form of Motions to Compel 8 In addition to complying with applicable provisions of Civil L.R. 7, a motion to compel further responses to discovery requests must set 9 forth each request in full, followed immediately by the objections and/or responses thereto. For each such request, the moving papers 10 must detail the basis for the party's contention that it is entitled to the requested discovery and must show how the proportionality and 11 other requirements of Fed. R. Civ. P. 26(b)(2) are satisfied. 12 Id. Relying on Civil Local Rule 37.2 and the Federal Rules of Civil Procedure, Magistrate Judge Northern District of California United States District Court 13 Vadas found that Plaintiff's arguments in both his October 14, 2016 and October 27, 2016 motions 14 were insufficient to support a motion to compel discovery, stating as follows: 15 Attached to Plaintiff's October 14th motion to compel further interrogatory responses are copies of the interrogatory 16 responses of Drs. Magat, Chen and Newell. (Doc. 55.) Plaintiff, however, does not "detail the basis for [his] contention that [he] is 17 entitled to the requested discovery." Although Plaintiff complains that he did not receive interrogatory answers from Dr. Khin, Dr. 18 Khin was not yet served and is thus was not a party to this action. While Plaintiff argues generally that the answers that Defendants 19 provided were evasive and incomplete, this is insufficient to support a motion to compel under the Federal Rules of Civil Procedure and 20 Civil Local Rule 37-2. 21 Attached to Plaintiff's October 27th motion to compel production of documents and request for admissions are copies of 22 the responses by Drs. Magat, Chen, and Newell. (Doc. 57, Attachments.) Plaintiff presents no argument as to why he is 23 entitled to the requested discovery. He argues only that "Defendants' responses are "evasive work product conjuration, 24 sleight of hand from the Attorneys period." Again, this is insufficient to support a motion to compel under the Federal Rules 25 of Civil Procedure and Civil Local Rule 37-2. 26 Id. at 2-3. Therefore, Magistrate Judge Vadas denied Plaintiff's October 14, 2016 and October 27, 27 2016 motions to compel discovery. Id. at 3. 28 On June 27, 2017, the parties appeared before Magistrate Judge Vadas to resolve 2 1 Plaintiff's remaining February 2, 2017 motion to compel discovery. See Dkts. 81, 100, 105. 2 On June 29, 2017, Plaintiff filed a motion, entitled "Motion to Recall Order of Magistrate 3 Judge Nandor J. Vadas; Denying Plaintiff's Motion to Compel Discovery Circumventing Standing 4 Order by District Court Judge June 02, 2017 for Parties to Meet and Confer in His Magistrate 5 Court," which the Court construes to be a motion to recall Magistrate Judge Vadas's June 15, 6 2017 Order. Dkt. 104. Defendants filed an opposition to the aforementioned motion. Dkt. 106. 7 On July 7, 2017, Magistrate Judge Vadas issued an order outlining the rulings made during 8 the June 27, 2017 hearing resolving Plaintiff's February 2, 2017 motion. Dkt. 105. 9 Thereafter, Plaintiff filed two more motions related to discovery disputes. Dkts. 107, 114. 10 He has also filed a renewed request for appointment of counsel, which Defendants oppose. Dkts. 11 107, 108, 110, 112. 12 II. PLANTIFF'S MOTION TO RECALL MAGISTRATE JUDGE VADAS'S ORDER Northern District of California United States District Court 13 As mentioned above, before the Court is Plaintiff's motion to recall Magistrate Judge 14 Vadas's June 15, 2017 Order relating to Plaintiff's October 14, 2016 and October 27, 2016 15 motions to compel discovery. Dkt. 104. Plaintiff claims that Magistrate Judge Vadas improperly 16 denied the aforementioned motions because, prior to the issuance of the June 15, 2017 Order, the 17 parties did not "meet and confer" according to the procedure set forth in the Court's June 2, 2017 18 Order. Id. at 1-2. 19 Defendants have opposed Plaintiff's motion to recall Magistrate Judge Vadas's Order. 20 Dkt. 106. Defendants argue that Plaintiff's motion should be denied because: "(1) it is a 21 procedurally impermissible motion for reconsideration and (2) good cause to compel further 22 responses remains absent." Id. at 1. The Court agrees with Defendants. 23 First, the Court notes that the "meet and confer" procedure outlined in its June 2, 2017 24 Order was taken from Magistrate Judge Vadas's Standing Order. See Standing Order of 25 Magistrate Judge Nandor J. Vadas at ¶ 13. The record shows that instead of waiting for the parties 26 to file a joint discovery letter, Magistrate Judge Vadas made the decision on June 15, 2017 to rule 27 on the October 14, 2016 and October 27, 2016 motions and to hold a hearing on the third motion 28 dated February 2, 2017. It seems that Plaintiff's present motion seeks to have the Court revisit the 3 1 decision made by Magistrate Judge Vadas. To seek reconsideration of an interlocutory order, such 2 as the decision in Magistrate Judge Vadas's June 15, 2017 Order, Plaintiff had to comply with 3 Local Rule 7-9(a). Here, Plaintiff did not do so. Plaintiff did not obtain leave of court to file a 4 motion for reconsideration, and made no argument in the attached brief that would suggest that 5 Plaintiff could pass the test for such permission. That is, Plaintiff did not show: (1) that at the time 6 of the motion for leave, a material difference in fact or law exists from that which was presented to 7 the court before entry of the interlocutory order for which the reconsideration is sought, and that in 8 the exercise of reasonable diligence the party applying for reconsideration did not know such fact 9 or law at the time of the interlocutory order; or (2) the emergence of new material facts or a 10 change of law occurring after the time of such order; or (3) a manifest failure by the court to 11 consider material facts which were presented to the court before such interlocutory order. See N. 12 D. Cal. Civil L.R. 7-9(b). Even without the special requirements for motions to reconsider, Northern District of California United States District Court 13 Plaintiff has failed to show that reconsideration of Magistrate Judge Vadas's June 15, 2017 Order 14 is warranted. In denying Plaintiff's October 14, 2016 and October 27, 2016 motions to compel 15 discovery, Magistrate Judge Vadas determined that Plaintiff's arguments in both motions were 16 insufficient to support a motion to compel under the Federal Rules of Civil Procedure and Civil 17 Local Rule 37-2. Dkt. 96 at 2-3. In his present motion, Plaintiff does not address this issue. 18 Furthermore, the Court notes that Plaintiff's October 27, 2016 motion to compel contains 19 duplicative discovery requests to his February 2, 2017 motion to compel, which was resolved 20 during the June 27, 2017 hearing before Magistrate Judge Vadas. See Dkts. 57, 81, 105. 21 Accordingly, the Court DENIES Plaintiff's motion to recall Magistrate Judge Vadas's June 22 15, 2017 Order. Dkt. 104. 23 III. PLAINTIFF'S REQUEST FOR APPOINTMENT OF COUNSEL 24 Plaintiff's previous requests for the appointment of counsel have been denied.1 He has 25 26 1 On September 4, 2015, the Court denied Plaintiff's initial request for appointment of 27 counsel. Dkt. 12. On January 9, 2017, the Court denied Plaintiff's second motion for appointment of counsel. Dkt. 74. On June 2, 2017, the Court construed Plaintiff's motion for appointment of 28 counsel as a request for the Court to reconsider its denial of his motions for appointment of counsel, and it denied Plaintiff's request. Dkt. 94. 4 1 filed yet another motion for appointment of counsel, which is again construed as a request for the 2 Court to reconsider its denial of his motions for appointment of counsel. See Dkt. 107. Such a 3 request is hereby DENIED. 4 There is no constitutional right to counsel in a civil case unless an indigent litigant may 5 lose his physical liberty if he loses the litigation. See Lassiter v. Dep't of Social Services, 452 U.S. 6 18, 25 (1981); Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (no constitutional right to 7 counsel in a section 1983 action), withdrawn in part on other grounds on reh'g en banc, 154 F.3d 8 952 (9th Cir. 1998) (en banc). The Court may ask counsel to represent an indigent litigant under 9 28 U.S.C. § 1915 only in "exceptional circumstances," the determination of which requires an 10 evaluation of both (1) the likelihood of success on the merits, and (2) the ability of the plaintiff to 11 articulate his claims pro se in light of the complexity of the legal issues involved. See id. at 1525; 12 Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wilborn v. Escalderon, 789 F.2d 1328, Northern District of California United States District Court 13 1331 (9th Cir. 1986). Both of these factors must be viewed together before reaching a decision on 14 a request for counsel under section 1915. See id. 15 In light of Plaintiff's ability to articulate his claims pro se in light of the complexity of the 16 legal issues involved, the Court finds that exceptional circumstances entitling him to court 17 appointed counsel still do not exist at this time. Accordingly, the request that the Court reconsider 18 its previous denial of his motions for appointment of counsel is DENIED without prejudice. See 19 Dkt. 107. 20 IV. REMAINING DISCOVERY DISPUTES 21 Pursuant to Civil Local Rule 72-1, this matter is REFERRED to Magistrate Judge Robert 22 M. Illman for the remaining discovery disputes. See Dkts. 107, 114. 23 The parties shall refer to Magistrate Judge Illman's Standing Order in regard to discovery 24 disputes. See Standing Order of Magistrate Judge Robert M. Illman at ¶ 13. 25 For the aforementioned pending discovery disputes, the parties should specially note the 26 requirement to meet and confer pursuant to Magistrate Judge Illman's Standing Order. See id. No 27 later than twenty-eight (28) days from the date of this Order, after they have met and conferred, 28 the parties shall prepare a joint discovery letter. See id. Defendants' attorney is directed to 5 1 contact Plaintiff in order to prepare the detailed joint letter. See id. The parties are also advised to 2 take into consideration any new requirements under the discovery rules. See Fed. R. Civ. P. 37. 3 Magistrate Judge Illman will advise the parties of how the matter will proceed. Magistrate 4 Judge Illman may issue a ruling, order additional briefing, or set a telephone conference or a 5 hearing. 6 Hereafter, all further discovery matters shall be filed pursuant to Magistrate Judge Illman's 7 procedures and Standing Order. The parties shall contact the courtroom deputy of Magistrate 8 Judge Illman for information about those procedures. Information may also be available on the 9 Court's website. 10 The parties are to inform the Court when the discovery disputes are resolved, and they 11 shall then abide by the briefing schedule outlined below. 12 V. CONCLUSION Northern District of California United States District Court 13 For the reasons outlined above, the Court rules as follows: 14 1. The Court DENIES Plaintiff's "Motion to Recall Order of Magistrate Judge 15 Nandor J. Vadas; Denying Plaintiff's Motion to Compel Discovery Circumventing Standing Order 16 by District Court Judge June 02, 2017 for Parties to Meet and Confer in His Magistrate Court," 17 which has been construed as a motion to recall Magistrate Judge Vadas's June 15, 2017 Order. 18 Dkt. 104. 19 2. Plaintiff's motion for appointment of counsel (which has been construed as a 20 request that the Court reconsider its previous denial of Plaintiff's motions for appointment of 21 counsel) is DENIED without prejudice to renewing if his claims survive summary judgment. See 22 Dkt. 107. 23 3. Plaintiff's remaining discovery disputes are referred to Magistrate Judge Robert M. 24 Illman. Dkts. 107, 114. No later than twenty-eight (28) days from the date of this Order, after 25 the parties have met and conferred, the parties shall prepare a joint discovery letter. As directed 26 above, Defendants' attorney shall contact Plaintiff in order to prepare the detailed joint letter. 27 4. The parties are to inform the Court when the discovery disputes are resolved. 28 5. Defendants may file a motion for summary judgment within twenty-eight (28) 6 1 days after the resolution of the discovery disputes. The motion must be supported by adequate 2 factual documentation, must conform in all respects to Federal Rule of Civil Procedure 56, and 3 must include as exhibits all records and incident reports stemming from the events at issue. A 4 motion for summary judgment also must be accompanied by a Rand2 notice so that Plaintiff will 5 have fair, timely and adequate notice of what is required of him in order to oppose the motion. 6 Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice requirement set out in Rand must be 7 served concurrently with motion for summary judgment). 8 If Defendants are of the opinion that this case cannot be resolved by summary judgment, 9 Defendants shall so inform the Court prior to the date the summary judgment motion is due. All 10 papers filed with the Court shall be promptly served on Plaintiff. 11 6. In the interests of justice, the Court sets a discovery cut-off date of twenty-eight 12 (28) days from the date Plaintiff is served with Defendants' dispositive motion. If Plaintiff Northern District of California United States District Court 13 attempts to meet and confer with Defendants regarding requests for the production of documents 14 and is not satisfied with the result he may file a renewed discovery motion. But in no event shall 15 he file such a motion until after he has reviewed Defendants' dispositive motion. 16 7. Plaintiff's opposition to the motion for summary judgment shall be filed with the 17 Court and served on Defendants no later than twenty-eight (28) days after the date on which 18 Defendants' motion is filed. 19 8. Plaintiff is advised that a motion for summary judgment under Rule 56 of the 20 Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must 21 do in order to oppose a motion for summary judgment. Generally, summary judgment must be 22 granted when there is no genuine issue of material fact—that is, if there is no real dispute about 23 any fact that would affect the result of your case, the party who asked for summary judgment is 24 entitled to judgment as a matter of law, which will end your case. When a party you are suing 25 makes a motion for summary judgment that is properly supported by declarations (or other sworn 26 testimony), you cannot simply rely on what your complaint says. Instead, you must set out 27 28 2 Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998). 7 1 specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, 2 as provided in Rule 56(c), that contradicts the facts shown in the defendant's declarations and 3 documents and show that there is a genuine issue of material fact for trial. If you do not submit 4 your own evidence in opposition, summary judgment, if appropriate, may be entered against you. 5 If summary judgment is granted, your case will be dismissed and there will be no trial. Rand, 154 6 F.3d at 962-63. 7 In the rare event that a failure to exhaust is clear on the face of the complaint, a defendant 8 may move for dismissal under Federal Rule of Civil Procedure 12(b)(6). Albino v. Baca, 747 F.3d 9 1162, 1166 (9th Cir. 2014) (en banc). Otherwise, Defendants must produce evidence proving 10 failure to exhaust in a motion for summary judgment under Federal Rule of Civil Procedure 56. 11 Id.3 If undisputed evidence viewed in the light most favorable to Plaintiff shows a failure to 12 exhaust, Defendants are entitled to summary judgment under Rule 56. Id. But if material facts are Northern District of California United States District Court 13 disputed, summary judgment should be denied and the district judge rather than a jury should 14 determine the facts in a preliminary proceeding. Id. at 1168. 15 Plaintiff is advised to read Rule 56 of the Federal Rules of Civil Procedure and Celotex 16 Corp. v. Catrett, 477 U.S. 317 (1986) (party opposing summary judgment must come forward 17 with evidence showing triable issues of material fact on every essential element of his claim). 18 Plaintiff is cautioned that because he bears the burden of proving his allegations in this case, he 19 must be prepared to produce evidence in support of those allegations when he files his opposition 20 to Defendants' dispositive motion. Such evidence may include sworn declarations from 21 Defendants and other witnesses to the incident, and copies of documents authenticated by sworn 22 declaration. Plaintiff will not be able to avoid summary judgment simply by repeating the 23 allegations of his complaint. 24 (The notices above do not excuse Defendants' obligation to serve similar notices again 25 26 3 In Albino, the Ninth Circuit, sitting en banc, overruled Wyatt v. Terhune, 315 F.3d 1108, 27 1119 (9th Cir. 2003), which held that failure to exhaust available administrative remedies under the PLRA, should be raised by a defendant as an unenumerated Rule 12(b) motion. Albino, 747 28 F.3d at 1166. "[A] failure to exhaust is more appropriately handled under the framework of the existing rules than under an 'unenumerated' (that is, non-existent) rule." Id. 8 1 concurrently with motions for summary judgment. Woods, 684 F.3d at 935.) 2 9. Defendants shall file a reply brief no later than fourteen (14) days after the date 3 Plaintiff's opposition is filed. 4 10. The motion shall be deemed submitted as of the date the reply brief is due. No 5 hearing will be held on the motion unless the Court so orders at a later date. 6 11. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court 7 informed of any change of address and must comply with the Court's orders in a timely fashion. 8 Pursuant to Northern District Local Rule 3-11 a party proceeding pro se whose address changes 9 while an action is pending must promptly file a notice of change of address specifying the new 10 address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint when: (1) mail 11 directed to the pro se party by the Court has been returned to the Court as not deliverable, and 12 (2) the Court fails to receive within sixty days of this return a written communication from the pro Northern District of California United States District Court 13 se party indicating a current address. See L.R. 3-11(b). 14 12. Upon a showing of good cause, requests for a reasonable extension of time will be 15 granted provided they are filed on or before the deadline they seek to extend. 16 13. The Clerk of the Court shall send Plaintiff a copy of Magistrate Judge Illman's 17 Standing Order in civil cases, along with a copy of this Order. 18 14. This Order terminates Docket No. 104. 19 Dated: 20 ______________________________________ YVONNE GONZALEZ ROGERS 21 United States District Judge 22 23 24 25 26 27 28 9