Wilkins v. Alameda County Sheriff's Office et al

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

ORDER by Judge Yvonne Gonzalez Rogers denying {{29}} at 1-2 Motion ; denying {{43}} Motion to Appoint Counsel ; denying {{51}} Motion to Recall Order for More Time Extension ; denying {{52}} Motion to Appoint Counsel. Plaintiff's request for extension of time to file opposition to defendants' motion for summary judgment is GRANTED; extended to 2/28/17.

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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 ADDRESSING PLAINTIFF'S PENDING MOTIONS AND HIS 6 SUBMITTED EXHIBIT; DIRECTING v. DEFENDANTS TO RESPOND TO 7 PLAINTIFF'S MOST-RECENT FILING; MARIA MAGAT, et al., AND SETTING NEW BRIEFING 8 SCHEDULE Defendants. 9 INTRODUCTION 10 Before the Court are several motions filed by Plaintiff including: (1) his "Motion for 11 [Court to] Order the Defendants' to Answer Complaint and [Participate in] Discovery" (dkt. 29); 12 Northern District of California (2) his motions for appointment of counsel (dkts. 43, 52); (3) his "Motion to Recall Order for United States District Court 13 More Time Extension (60 Days)" (dkt. 51); and (4) his motions to compel discovery (dkts. 55, 57) 14 as well as his most-recent filing entitled "RE: Inadequate Responses to Discovery Requests Letter 15 "Exhibit '01-A'" Addition to File" (dkt. 73). Plaintiff has also submitted an exhibit described as a 16 pair of boxer shorts with "puss and blood" stains. Dkt. 40. The Court addresses each of Plaintiff's 17 motions and the aforementioned submitted exhibit below. 18 DISCUSSION 19 I. "MOTION FOR ORDER THE DEFENDANTS' TO ANSWER COMPLAINT AND 20 FOR DISCOVERY" 21 Plaintiff requests that the Court direct Defendants to file an answer to the complaint. Dkt. 22 29 at 1-2. The request is DENIED. On March 25, 2016, Defendants filed a waiver of reply 23 pursuant to 42 U.S.C. § 1997e(g) (allowing a defendant to "waive the right of reply" in a civil 24 rights action filed by a prisoner, providing that such a waiver is not an admission of the allegations 25 in the complaint, and disallowing relief for the plaintiff unless a reply has been filed). When they 26 filed the waiver, the Court had not required a reply pursuant to 42 U.S.C. § 1997e(g)(2). 27 Defendants have since filed a dispositive motion, which is currently before this Court and will be 28 resolved in a separate written Order after it has been fully submitted. See Dkt. 65. 1 Plaintiff also requests that the Court direct Defendants to participate in discovery. Dkt. 29 2 at 2-4. The Court notes that the parties have previously been instructed that discovery "may be 3 taken in accordance with the Federal Rules of Civil Procedure." Dkt. 18 at 10. The Court further 4 stated: "No further court order under Federal Rule of Civil Procedure 30(a)(2)(B) or Local Rule 16 5 is required before the parties may conduct discovery." Id. Therefore, to the extent that Plaintiff 6 requests the Court to order Defendants to participate in discovery, such a request is DENIED as 7 unnecessary. 8 II. MOTION FOR APPOINTMENT OF COUNSEL 9 Plaintiff also has requested that counsel be appointed to represent him in this action. Dkts. 10 43, 52. A district court has the discretion under 28 U.S.C. §1915(e)(1) to designate counsel to 11 represent an indigent civil litigant in exceptional circumstances. See Wilborn v. Escalderon, 789 12 F.2d 1328, 1331 (9th Cir. 1986). This requires an evaluation of both the likelihood of success on Northern District of California United States District Court 13 the merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity of 14 the legal issues involved. See id. Neither of these factors is dispositive and both must be viewed 15 together before deciding on a request for counsel under § 1915(e)(1). Here, exceptional 16 circumstances requiring the appointment of counsel are not evident at this time. His requests for 17 appointment of counsel are DENIED. Dkts. 43, 52. 18 III. "MOTION TO RECALL ORDER FOR MORE TIME EXTENSION (60 DAYS)" 19 On September 27, 2016, the Court granted Defendants' motion for an extension of time to 20 file their motion for summary judgment. Dkt. 47. The Court directed Defendants to file their 21 disposition motion no later than December 5, 2016. See id. As mentioned above, Defendants 22 filed a timely motion for summary judgment. Dkt. 65. 23 Before the Court is Plaintiff's "Motion to Recall Order for More Time Extension (60 24 Days)," in which he moved for reconsideration of the Court's September 27, 2016 Order 25 continuing the dispositive motion filing deadline. Dkt. 51. It seems that the essence of Plaintiff's 26 argument is that Defendants "failed to notice [him] properly at least 14 days in advance" of a 27 hearing on their motion under Federal Rule of Civil Procedure 6(c). Id. at 2. Plaintiff's argument 28 is without merit. As stated above, Plaintiff argues he received inadequate notice of the hearing on 2 1 Defendants' request for an extension under Rule 6(c). However, Defendants' request for an 2 extension of time was decided without hearing; therefore, Rule 6(c) is inapplicable. Furthermore, 3 the record shows that the Court used its discretion in finding good cause to grant Defendants such 4 an extension of time in which to file their motion for summary judgment. Accordingly, Plaintiff's 5 "Motion to Recall Order for More Time Extension (60 Days)" is DENIED. 6 IV. PLAINTIFF'S SUBMITTED EXHIBIT 7 As mentioned above, Plaintiff has submitted an exhibit described as a pair of boxer shorts 8 with "puss and blood" stains. Dkt. 40. While his exhibit was submitted with multiple 9 unorganized documents, Plaintiff did not file any motion along with the exhibit explaining its 10 purpose or what he would like the Court to do with such an exhibit. The Court is not the proper 11 custodian of such exhibits if there is no pending motion before it. As such, because Plaintiff has 12 not provided a clear purpose for the Court to hold on to such an exhibit at this time, there is no Northern District of California United States District Court 13 reason for the Court to keep it. Therefore, such an exhibit will be returned to Plaintiff within 14 twenty-eight (28) days of the date of this Order unless he files a motion explaining why he has 15 submitted such an exhibit to the Court and why such a submission is proper at this time. Plaintiff 16 shall also provide an explanation as to why the Court is the proper custodian of such an exhibit. If 17 Plaintiff files such a motion, Defendants shall respond to it no later than fourteen (14) days after 18 it is filed. If Plaintiff does not file such a motion within the deadline specified above, then Clerk is 19 directed to return the exhibit to Plaintiff. 20 V. MOTIONS TO COMPEL DISCOVERY 21 Before the Court are Plaintiff's motions to compel discovery (dkt. 55, 57) and his most- 22 recent filing entitled "RE: Inadequate Responses to Discovery Requests Letter "Exhibit '01-A'" 23 Addition to File" (dkt. 73). 24 It is not an effective or appropriate use of the Court's limited resources for it to oversee all 25 aspects of discovery. Thus, before filing a motion to compel, the moving party must first attempt 26 to resolve the dispute informally with the opposing party. It is only when the parties are unable to 27 resolve the dispute after making a good faith effort to do so should they seek the Court's 28 intervention. See Fed. R. Civ. P. 37(a)(2)(B); N.D. Cal. Local Rule 37-1. Because Plaintiff is 3 1 incarcerated, he is not required to meet and confer with Defendants in person. Rather, if 2 Plaintiff's discovery requests are denied and he intends to pursue a motion to compel, he need 3 only send a letter to Defendants to that effect, offering them one last opportunity to provide him 4 the sought-after information. The letter should state the specific discovery he seeks, and state the 5 reasons that Plaintiff believes he is entitled to such discovery. 6 Defendants have opposed Plaintiff's motions to compel, but they have not responded to 7 whether Plaintiff's most-recent filing, i.e., a letter entitled "Re: Inadequate Responses to 8 Discovery Requests," is sufficient proof that he met and conferred with Defendants—granting 9 them an additional opportunity to provide him the information he sought—prior to filing the 10 motions to compel. 11 No later than fourteen (14) days of the date of this Order, Defendants shall respond to 12 Plaintiff's aforementioned most-recent filing. The Court again notes that Defendants have filed a Northern District of California United States District Court 13 motion for summary judgment, which includes various declarations and exhibits. Thus, 14 Defendants shall also explain whether they have already produced some of the discovery Plaintiff 15 is seeking, or are in the process of obtaining records in response to some of Plaintiff's requests. 16 After the Court receives Defendants' response, it will then resolve the pending motions to compel 17 discovery. 18 The Court further notes that the deadline for Plaintiff's opposition to Defendants' motion 19 for summary judgment is January 6, 2017. At this time, Plaintiff has not addressed whether or not 20 he needs an extension of time to file his opposition. However, the Court construes Plaintiff's 21 aforementioned most-recent filing as a request for an extension of time to file his opposition, and 22 such a request is GRANTED. The parties are directed to abide by the briefing schedule below. 23 CONCLUSION 24 For the reasons outlined above, the Court orders as follows: 25 1. Plaintiff's request that the Court direct Defendants to file an answer to the 26 complaint is DENIED. Dkt. 29 at 1-2. 27 2. Plaintiff's request that the Court order Defendants to participate in discovery is 28 DENIED as unnecessary. Dkt. 29 at 2-4. 4 1 3. Plaintiff's requests for appointment of counsel are DENIED. Dkts. 43, 52. 2 4. Plaintiff's "Motion to Recall Order for More Time Extension (60 Days)" is 3 DENIED. Dkt. 51. 4 5. Plaintiff has not provided a clear purpose for the Court to hold on to the 5 aforementioned submitted exhibit—"boxer shorts [with] puss and blood [stains]"—at this time. 6 Such an exhibit will be returned to Plaintiff within twenty-eight (28) days of the date of this 7 Order unless he files a motion explaining why he has submitted it to the Court and why such a 8 submission is proper at this time. Plaintiff shall also provide an explanation as to why the Court is 9 the proper custodian of such an exhibit. If Plaintiff files such a motion, Defendants shall respond 10 to it no later than fourteen (14) days after it is filed. If Plaintiff does not file such a motion within 11 the deadline specified above, then Clerk is directed to return the exhibit to Plaintiff. 12 6. Defendants have opposed Plaintiff's pending motions to compel, but they have not Northern District of California United States District Court 13 responded to whether Plaintiff's most-recent filing, i.e., a letter entitled "Re: Inadequate 14 Responses to Discovery Requests," is sufficient proof that he met and conferred with them. No 15 later than fourteen (14) days of the date of this Order, Defendants shall respond to Plaintiff's 16 aforementioned most-recent filing, as directed above. After the Court receives Defendants' 17 response, it will then resolve Plaintiff's pending motions to compel discovery. 18 7. The Court construes Plaintiff's aforementioned most-recent filing as a request for 19 an extension of time to file his opposition to Defendants' motion for summary judgment, and such 20 a request is GRANTED. The time in which Plaintiff may file his opposition to Defendants' 21 motion for summary judgment will be extended up to and including February 28, 2017. 22 Defendants shall file a reply brief no later than fourteen (14) days after the date Plaintiff's 23 opposition is filed. No further extensions of time will be granted in this case absent 24 extraordinary circumstances. 25 8. This Order terminates Docket Nos. 29, 43, 51, and 52. 26 IT IS SO ORDERED. 27 Dated: January 9, 2017 ______________________________________ YVONNE GONZALEZ ROGERS 28 United States District Judge 5