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ALLEN v. CORRECTIONAL SGT. BOSLEY

United States District Court, N.D. California


June 1, 2005.

KEVIN D. ALLEN, Plaintiff,
v.
CORRECTIONAL SGT. BOSLEY, ET AL., Defendants.

The opinion of the court was delivered by: CLAUDIA WILKEN, District Judge

ORDER SERVING SECOND AMENDED COMPLAINT AND ADDRESSING PENDING MOTIONS
On February 22, 2005, the Court issued an Order addressing discovery matters relevant to Plaintiff's claims against Pelican Bay State Prison (PBSP) Defendants Correctional Sgt. Bosley, Correctional Officer Wolf and Correctional Officer Waycott for excessive force against Plaintiff caused by Defendants' use of pepper spray on another inmate which resulted in injury to Plaintiff, and deliberate indifference to Plaintiff's serious medical needs caused by Defendants' failure to allow Plaintiff to leave his cell and/or be decontaminated after coming into contact with the pepper spray. The Court also granted Plaintiff leave to amend to file a second amended complaint against four newly named Defendants.

On March 7, 2005, Plaintiff filed a request to amend his complaint and submitted a proposed second amended complaint. The second amended complaint meets the requirements set out in the Court's earlier Order. Accordingly, leave to file the second amended complaint is GRANTED.*fn1 (Docket no. 41.) The Clerk of the Court shall serve the Defendants with the second amended complaint, as set forth below.

  On March 18, 2005, in response to the Court's prior Order, Defendants submitted under seal for the Court's in camera review the following items: (1) incident report documents regarding the cell extraction of inmate Silverman, and (2) a videotape of the cell extraction of inmate Silverman. Defendants also submitted a proposed protective order to govern Plaintiff's access to these items. The Court has reviewed the items in camera and has entered separately the protective order proposed by Defendants.

  In its prior Order the Court granted Plaintiff leave to depose by written deposition inmate Silverman. Plaintiff now moves the Court for a subpoena to compel Defendants' counsel (the State Attorney General's Office) to locate inmate Silverman, who was released recently on parole, and to cause him to appear and answer the written deposition questions submitted by Plaintiff. Plaintiff states that he is unable to do so because of his incarcerated status. Defendants' counsel has objected to Plaintiff's request. It is not the responsibility of Defendants' counsel to provide Plaintiff with access to non-party witnesses, especially those hostile to the defense. Nevertheless, the Court is aware of the limitations placed on Plaintiff's ability to obtain information regarding inmate Silverman's whereabouts by the California Department of Corrections because of Plaintiff's incarcerated status and inmate Silverman's status as a parolee. However, it is not clear that Plaintiff would be unable to file an opposition to any dispositive motion Defendants might file without deposing inmate Silverman. Specifically, in accord with the Court's entry of Defendants' proposed protective order, Plaintiff will have access to the incident reports regarding inmate Silverman's removal from his cell and the videotape of the cell removal, and Plaintiff also has been provided with other discovery relevant to his claims. Accordingly, Plaintiff's request that the Court issue a subpoena for the California Department of Corrections to produce inmate Silverman for written deposition is DENIED without prejudice. (Docket no. 43.) If, after dispositive motions have been filed or Defendants have informed the Court that they intend to proceed to trial, Plaintiff remains of the good faith opinion that inmate Silverman's deposition testimony is necessary to the prosecution of his action, he may renew his request.

  Plaintiff seeks a subpoena to command PBSP Correctional Officer J. Morrison, a non-party, to answer written deposition questions. The Clerk of Court shall provide Plaintiff with a third-party subpoena for this purpose.

  Plaintiff moves for the appointment of counsel to represent him in this action. He has provided the Court with a plethora of documentation which shows that he has attempted diligently to find private counsel to represent him pro bono, but has been unsuccessful. There is no constitutional right to counsel in a civil case unless an indigent litigant may lose his physical liberty if he loses the litigation. See Lassiter v. Dep't of Social Services, 452 U.S. 18, 25 (1981); Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (no constitutional right to counsel in § 1983 action), withdrawn in part on other grounds on reh'g en banc, 154 F.3d 952 (9th Cir. 1998) (en banc). However, a court "may request an attorney to represent any person unable to afford counsel." 28 U.S.C. § 1915(e)(1). The decision whether to request counsel to represent an indigent litigant under § 1915 is within "the sound discretion of the trial court and is granted only in exceptional circumstances." Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). A finding of "exceptional circumstances" requires an evaluation of the likelihood of the plaintiff's success on the merits and an evaluation of the plaintiff's ability to articulate his claims pro se in light of the complexity of the legal issues involved. See Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004); Rand, 113 F.3d at 1525; Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). Both of these factors must be viewed together before reaching a decision on a request for counsel under § 1915. See id. Neither the need for discovery, nor the fact that the pro se litigant would be better served with the assistance of counsel, necessarily qualify the issues involved as complex. See Rand, 113 F.3d at 1525; see Wilborn, 789 F.2d at 1331 (that plaintiff may well have fared better with assistance of counsel not enough).

  At this point in the proceedings it is premature for the Court to determine whether the "exceptional circumstances" which would merit an attempt to find pro bono counsel to represent Plaintiff exist. Accordingly, Plaintiff's request for the appointment of counsel is DENIED without prejudice. (Docket no. 44.) Plaintiff may renew his request after dispositive motions have been filed or if Defendants inform the Court that they do not intend to file dispositive motions and will proceed to trial.

  Accordingly, for the reasons set forth above and good cause appearing, the Court hereby orders:

  1. Plaintiff's request for a subpoena to compel inmate Silverman's attendance to answer written deposition questions is DENIED without prejudice. (Docket no. 43.)

  2. Plaintiff's request for the appointment of counsel is DENIED without prejudice. (Docket no. 44.)

  3. Plaintiff's request that the Court issue a third-party subpoena to command PBSP Correctional Officer J. Morrison, a non-party, to answer written deposition questions is GRANTED. The Clerk of the Court shall provide Plaintiff with a third-party subpoena for this purpose.

  4. Plaintiff's first request to file a second amended complaint is DENIED as moot. (Docket no. 39.) Plaintiff's second request to file a second amended complaint is GRANTED. (Docket no. 41.)

  5. The Clerk of the Court shall mail to Pelican Bay State Prison Defendants CORRECTIONAL OFFICER HOWARD B. SMITH, LIEUTENANT M.A. SMELOSKY, ASSOCIATE WARDEN L. POLK, and MEDICAL TECHNICAL ASSISTANT S. KREGER: a Notice of Lawsuit and Request for Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy of the SECOND AMENDED COMPLAINT (docket no. 40), and a copy of this Order. The Clerk of the Court shall also mail a copy of the SECOND AMENDED COMPLAINT and a copy of this Order to Deputy Attorney General Jay Craig Russell, counsel for Defendants Wolf, Waycott and Bosley.

  6. Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure requires them to cooperate in saving unnecessary costs of service of the summons and complaint. Pursuant to Rule 4, if Defendants, after being notified of this action and asked by the Court, on behalf of Plaintiff, to waive service of the summons, fail to do so, they will be required to bear the cost of such service unless good cause be shown for their failure to sign and return the waiver form. If service is waived, this action will proceed as if Defendants had been served on the date that the waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendants will not be required to serve and file an answer before sixty (60) days from the date on which the request for waiver was sent. (This allows a longer time to respond than would be required if formal service of summons is necessary.) Defendants are asked to read the statement set forth at the foot of the waiver form that more completely describes the duties of the parties with regard to waiver of service of the summons. If service is waived after the date provided in the Notice but before Defendants have been personally served, the Answer shall be due sixty days from the date on which the request for waiver was sent or twenty days from the date the waiver form is filed, whichever is later.

  7. Defendants shall answer the complaint in accordance with the Federal Rules of Civil Procedure. The following briefing schedule shall govern dispositive motions in this action:

  a. No later than ninety (90) days from the date their answer is due, Defendants shall file a motion for summary judgment or other dispositive motion. The motion shall be supported by adequate factual documentation and shall conform in all respects to Federal Rule of Civil Procedure 56. If Defendants are of the opinion that this case cannot be resolved by summary judgment, they shall so inform the Court prior to the date the summary judgment motion is due. All papers filed with the Court shall be promptly served on Plaintiff.

  b. Plaintiff's opposition to the dispositive motion shall be filed with the Court and served on Defendants no later than sixty (60) days after the date on which Defendants' motion is filed. Plaintiff should re-read the Court's prior Order of service, which contains the notice the Ninth Circuit requires be given to pro se plaintiffs regarding summary judgment. See Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc).

  c. If Defendants wish to file a reply brief, they shall do so no later than thirty (30) days after the date Plaintiff's opposition is filed.

  d. The motion shall be deemed submitted as of the date the reply brief is due. No hearing will be held on the motion unless the Court so orders at a later date.

  8. Discovery may be taken in this action in accordance with the Federal Rules of Civil Procedure and this Court's prior Order addressing discovery (docket no. 27). Leave of the Court pursuant to Rule 30(a)(2) is hereby granted to Defendants to depose Plaintiff and any other necessary witnesses confined in prison.

  9. All communications by Plaintiff with the Court must be served on Defendants, or Defendants' counsel once counsel has been designated, by mailing a true copy of the document to Defendants or Defendants' counsel.

  10. Extensions of time are not favored, though reasonable extensions will be granted. Any motion for an extension of time must be filed no later than seven days prior to the deadline sought to be extended.

  IT IS SO ORDERED.


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