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Rios v. Tilton


September 23, 2010


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. This action is referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B), Local General Order No. 262, and E.D. Cal. L.R. ("Local Rule") 302. Presently pending are several motions, identified below, filed by both plaintiff and defendants.


This action proceeds on plaintiff's original complaint, filed April 25, 2007, against defendants J.E. Tilton (Secretary, California Department of Corrections and Rehabilitation ("CDCR")), T. Lockwood (Chief, Regulation and Policy Management Branch, CDCR), K. Brandon (Correctional Officer ("CO") at California State Prison-Sacramento ("CSPS"), G. Parker (also a CSP-S Correctional Officer), and J.E. Mayfield (CSP-S Correctional Counselor II).*fn1

The complaint (Dkt. No. 1) alleges that defendants erroneously validated plaintiff as a gang member while incarcerated at CSP-S, resulting in his placement in the maximum security housing unit ("SHU") and continued following to his transfer to CSP-Corcoran, where plaintiff remains incarcerated. Plaintiff contends that defendants acted without due process because they allegedly relied on fraudulent or unreliable confidential information from staff or other inmates, and/or relied inappropriately on plaintiff's Hispanic ethnic status, locale of commitment, and association with other prisoners within his ethnic group, and/or acted in retaliation against plaintiff for filing administrative grievances. Plaintiff also alleges that his gang validation and SHU placement have caused him to be repeatedly denied parole.*fn2

Service of the complaint was found appropriate on the above-named defendants. (Dkt. No. 8, filed March 6, 2008.) All defendants waived service of process (Dkt. Nos. 16, 22), and filed a motion to dismiss (Dkt. No. 19). On March 3, 2009, the district judge adopted the findings and recommendations of the former magistrate judge that defendants' motion to dismiss be granted on plaintiff's due process claim against defendant Mayfield, but denied in all other respects; Mayfield remains in this action on plaintiff's other claims. (Dkt. Nos. 30, 31.)

Defendants answered the complaint on March 3, 2009 (Dkt. No. 32), and the court thereafter, on March 13, 2009, issued an order authorizing the commencement of discovery (without imposing deadlines) (Dkt. No. 33). Defendants filed a motion for summary judgment on November 19, 2009 (Dkt. No. 45), amidst several unresolved discovery disputes. After the reassignment of this case to the undersigned, this court issued two orders on March 26, 2010:

(1) a Discovery and Scheduling Order (Dkt. No. 57), setting a discovery and discovery-motion deadline of July 1, 2010, and a dispositive motion deadline of September 30, 2010; and (2) an order addressing the outstanding discovery disputes and denying defendants' motion for summary judgment without prejudice to the filing of a timely-filed amended motion after the close of discovery (Dkt. No. 58).

The court thereafter granted defendants' requests for extensions of time within which to respond to discovery requests. (Dkt. Nos. 60 (filed 4/23/10), 63 (filed 6/18/10).) When the court granted defendants' third request for extension of time, the undersigned extended the discovery deadline to August 20, 2010, and the dispositive motion deadline to November 19, 2010. (Dkt. No. 66.) That order was signed on July 8, 2009, and filed on July 9, 2010.

Meanwhile, on July 7, 2010, defendants filed an Amended Motion for Summary Judgment (Dkt. No. 67), while, on July 8, 2010, plaintiff filed a motion to compel discovery and to file an amended complaint (Dkt. No. 71), and his fourth motion for appointment of counsel (Dkt. No. 70). Defendants filed oppositions to plaintiff's motions (Dkt. Nos. 72, 73), while plaintiff filed motions for extension of time, to strike defendants' motion for summary judgment, and for protective order (Dkt. Nos. 74-76), as well as replies to defendants' opposition to plaintiff's motions (Dkt. Nos. 77, 79, 80), and further briefing in support of plaintiff's motion for protective order (Dkt. No. 78). These several matters are now addressed by the court.



Defendants filed their Amended Motion for Summary Judgment (Dkt. No. 67) on July 7, 2010. While timely filed within the prior deadlines, the court nearly simultaneously extended the discovery deadline to August 20, 2010 (Dkt. No. 66), thus rendering the motion for summary judgment prematurely filed (through no fault of defendants). This timing problem, and the fact that there remain outstanding discovery disputes, require that defendants' summary judgment motion be vacated without prejudice to the timely filing of a "Second Amended Motion for Summary Judgment." Thus, the court will, in substance, grant plaintiff's "Motion to Strike Defendants['] Premature Amended Motion for Summary Judgment Until This Court Rules on Plaintiff['s] Motion to Compel Discovery...." (Dkt. No. 75.)*fn3


Plaintiff has filed one motion that seeks both to compel discovery and leave of court to file an amended complaint. (Dkt. No. 71.) The court first addresses plaintiff's discovery motion; that portion of plaintiff's motion seeking leave to file an amended complaint is addressed separately below.*fn4

Plaintiff generally challenges defendants' discovery responses as untimely and inadequate, while specifically seeking disclosure of the "name[s] of prison officials who ha[ve]... filed or approved confidential information which does not me[e]t the reliability criteria and [was] filed against plaintiff... for retaliatory purposes or in [a] discriminatory manner to subject plaintiff to be validated as a prison gang associate by false, unreliable, fraudulent information...." (Dkt. No. 71, at 14; see generally, id. at 30-73.)

Defendants respond in part that these same issues were asserted in plaintiff's discovery motion filed July 23, 2009 (Dkt. No. 39), and that the court has not yet ruled on that motion. However, upon reassignment of this case and extension of the discovery deadline, the undersigned denied this and other pending motions without prejudice to their renewal. (Dkt. No. 58, at 2, 4.) Thus, the court now addresses only those matters raised in plaintiff's current briefing; however, as necessary, the court references the discovery requests and responses fully included in plaintiff's July 23, 2009 filing (Dkt. No. 39).

1. Plaintiff's Requests for Production (Set One)

Plaintiff served on all defendants his Requests for Production (Set One) on March 10, 2009, and responses were served by mail on April 24, 2009 (see Dkt. No. 39-1, at 50), which were timely within the 45-day deadline set by the initial discovery order in this case (Dkt. No. 33). Plaintiff initially contends that he received defendants' responses three to four weeks late because they were improperly addressed, failing to designate that plaintiff was housed in the SHU, which had a separate postal box number.*fn5 However, plaintiff does not assert that he was prejudiced thereby and the court does not find any prejudice. Defendants sent their responses to the correct inmate at the correct institution, and the institutional delay in plaintiff's receipt cannot reasonably be attributable to defendants. Accordingly, plaintiff's motion will be denied to the extent plaintiff seeks, based on an untimeliness argument, to strike defendants' production responses or deem defendants' objections waived.

On May 11, 2009, plaintiff sent a letter to defendants requesting generally that they supplement all of their responses. (Dkt. No. 39-1, at 21.) In a June 2, 2009 letter, defendants responded in pertinent part (Dkt. No. 39-1, at 51) (emphasis added):

Regarding Defendants' response to Request No. 1 [which sought "[t]he complete prison file of Reno Fuentes Rios " (Dkt. No. 39-1, at 14)], you requested a complete copy of your central file. Defendants informed you that the non-confidential portions of your central file are available for inspection and copying under institutional policies and procedures. For institutional safety and security reasons, you are not allowed access to the confidential portions of your central file. Accordingly, because Defendants informed you where the responsive documents can be located, Defendants' response is complete and cannot be supplemented..... Regarding Defendants' response to Request No. 9 [which sought "[a]ny and all debriefing reports that refer to or described Reno Fuentes Rios" (Dkt. No. 39-1, at 16)], you requested all debriefing reports that refer to or describe you. These are confidential documents which contain other inmates' names, CDC numbers, and gang association information. Disclosure of these documents would create a hazard to the safety and security of the institution. Therefore, in the interest of ensuring institutional safety and security, Defendants will not produce any responsive documents.

Defendants also informed plaintiff that they had provided all documents responsive to plaintiff's Request Nos. 2-8, and 10-14, that they had no documents responsive to plaintiff's Request No. 15, and that they were unable to respond to plaintiff's Request No. 16, which posed a question rather than requested documents.

Plaintiff challenges each of defendants' responses. (Dkt. No. 71 at 54-64.) However, for the reasons stated by defendants in their June 2, 2009 letter, the only documents that remain in issue are those sought by plaintiff's Request Nos. 1 and 9.

Plaintiff contends that he requires access to his entire prison file (as sought pursuant to Request No. 1) in order to obtain the identity of staff and inmates who provided information about plaintiff's purported gang affiliations, to obtain evidence and identify witnesses in support of plaintiff's claim that he has been wrongly identified as a gang member, and in support of plaintiff's claim that one or more defendants have acted in retaliation against plaintiff. Plaintiff argues that any truly confidential information can be redacted to protect inmate and institutional security. In a separate filing, plaintiff has submitted a copy of a completed CDC Form 810 ("Confidential Information Listing") which lists, with cursory details, confidential information in plaintiff's central file that has been withheld from him. (Dkt. No. 78, at 29-36.)

Plaintiff also contends that he requires access to any information obtained during the debriefing of other inmates that has been used against plaintiff (as sought pursuant to Request No. 9), for the same reasons set forth above. Plaintiff argues that the very nature of debriefings creates unreliable information.*fn6 Defendants respond by referencing their briefing filed August 6, 2009. (Dkt. No. 73, at 3, referencing Dkt. No. 40.) However, defendants' prior argument in support of their response to plaintiff's Request No. 1 (that defendants are not the custodian of plaintiff's central file) is non-responsive.*fn7 In contrast, defendants' prior argument in support of their response to plaintiff's Request No. 9 focused on inmate and institutional security.*fn8 At the heart of both disputed requests is the authority of the CDCR to identify information as confidential and to withhold such information even from the inmate most directly impacted by it.

"California's policy of assigning suspected gang affiliates to the SHU is not a disciplinary measure, but an administrative strategy designed to preserve order in the prison and protect the safety of all inmates. Although there are some minimal legal limitations, the assignment of inmates within the California prisons is essentially a matter of administrative discretion." Munoz v. Rowland, 104 F.3d 1096, 1098 (9th Cir. 1997) (citations omitted).

Thus, while there exists a liberty interest in freedom from indefinite administrative segregation in California prisons, see, e.g., Ashker v. Schwarzenegger, 2009 WL 801557 (N.D. Cal. 2009), at *13, citing Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir. 1986), cert. denied, McCarthy v. Toussaint, 481 U.S. 1069 (1987), and due process requires a "quantum of process" that includes an "informal, non-adversary evidentiary review" at the outset, subject to periodic review, Toussaint, 801 F.2d at 1100-01, citing, inter alia, Hewitt v. Helms, 459 U.S. 460 (1983), not all information relied upon to make the decision to administratively segregate a prisoner need be disclosed to the prisoner.

State regulations expressly authorize prison officials to withhold as "confidential" any information that would jeopardize the security of the institution or endanger the safety of any person therein. Cal. Code. Regs., tit. 15, § 3321(a)(1), (2). An inmate may not have access to confidential information contained in his own case file, id., § 3370(d) ("No inmate or parolee shall access information designated confidential pursuant to section 3321 which is in or from their own case records file"); nor may an inmate have access to the case records of other inmates, id., § 3370(b) ("Except by means of a valid authorization, subpoena, or court order, no inmate or parolee shall have access to another's case records file, unit health records, or component thereof").

However, confidential information may be relied upon to validate an inmate as a gang member only if such information "meets the test of reliability." Id., § 3378(c)(2), citing § 3321.*fn9 Such confidential information must be disclosed in limited fashion to the affected inmate pursuant to a completed CDC From 1030. Id., § 3378(c)(6)(C) ("All source items referenced in the validation... shall be disclosed to the inmate at the time of notification. The inmate shall be given copies of all non-confidential documents unless otherwise requested in writing by the inmate. Confidential information used in the validation or inactive status review shall be disclosed to the inmate via a CDC Form 1030 (Rev. 12/86), Confidential Information Disclosure Form.").) Such disclosure includes the following details: "The documentation given to the inmate shall include: (A) The fact that the information came from a confidential source [and] (B) As much of the information as can be disclosed without identifying its source including an evaluation of the source's reliability; a brief statement of the reason for the conclusion reached; and, a statement of reason why the information or source is not disclosed." Id., § 3321(b)(3)(A), (B).

These regulations therefore require that defendants disclose to plaintiff, in response to his Request No. 1, and in the restricted format set forth above, any information in plaintiff's central file that has been designated "confidential" and relied upon to validate plaintiff as a gang member. The information set forth in the CDC Form 810 responsive to plaintiff's central file request does not appear to provide all of this information. Moreover, the prior argument of defendants that they are not the custodian of records for plaintiff's prison file (see n.6, supra) is unsatisfactory. The Attorney General's Office, which generally represents all CDCR defendants, shall work with the litigation coordinators for CSP-Sacramento and CSP-Corcoran, and any other implicated institution, to arrange for the disclosure of information from plaintiff's central file as directed herein.

Accordingly, defendants shall, within thirty (30) days of the filing date of this order, personally serve plaintiff with a supplemental response to plaintiff's Request No. 1, as described in the conclusion of this order.

In contrast, plaintiff does not have a right to the debriefings of any other inmate. To the extent that such information impacts plaintiff, it should be included in his central file and will be discovered in limited form pursuant to his order. The court will therefore deny plaintiff's motion to compel a further response to his Request No. 9.

2. Plaintiff's Interrogatories (Set One)

Plaintiff served on all defendants his Interrogatories (Set One) on April 3, 2009, and responses were served by mail on May 18, 2009 (see Dkt. No. 39-3, at 13, 26, 41, 61, 69), which were timely within the 45-day deadline set by the initial discovery order in this case (Dkt. No. 33). Thus, plaintiff's initial contention that defendants waived their objections to plaintiff's interrogatories because untimely served is without merit.

Plaintiff sent a letter to defendants on June 12, 2009, requesting that defendants supplement their responses. In a June 30, 2009 letter, defendants responded in pertinent part (Dkt. No. 39-3, at 70):

The only information omitted is in Defendant Brandon's response to Interrogatory No. 11, part four, in which you request the names of the inmates referred to in the confidential documents used to validate you as an associate of the Mexican Mafia. This information cannot be revealed to you because it would invade those inmates' privacy and place their safety in danger.

Plaintiff now asserts only generally that "[e]ach defendant refused to fully cooperate with discovery based on same repetitive objections and ambiguous assumptions, non-responsive, incomplete, with frivolous answers." (Dkt. No. 71, at 67.) Plaintiff also states, incorrectly, that he "did not request[] the disclosure of confidential information which could create a hazard to the safety and security of the institution or others." (Id. at 66.)

Based on the principles of confidentiality set forth above, and because plaintiff has failed to articulate any cognizable basis for ordering further answers to his Interrogatories (Set One), this request will be denied.

3. Plaintiff's Interrogatories (Set Two)

Plaintiff challenges the answers to his Interrogatories (Set Two) served, respectively, on defendants Brandon (served on October 30, 2009), Parker (served on February 7, 2010), Mayfield (served on February 16, 2010), Tilton and Lockwood (each served on May 12, 2010). (Dkt. No. 71, at 69-72.)

Noting the shortened thirty-day deadline for serving discovery responses set by this court's March 26, 2010 Discovery and Scheduling Order (Dkt. No. 57), plaintiff first contends that he has been prejudiced by this court's extensions of time granted to defendants to respond to plaintiff's additional discovery, particularly Tilton and Lockwood, resulting in disclosure so close to the previous discovery deadline of July 1, 2010, that it foreclosed a mutually beneficial meet and confer. (Dkt. No. 71, at 69-70.) However, plaintiff's motion was drafted before this court extended the discovery deadline to August 20, 2010. Accordingly, plaintiff's motions on this basis as to Tilton and Lockwood will be denied.

Plaintiff challenges the refusal of defendants Brandon, Parker and Mayfield to answer more than 25 of plaintiff's interrogatories. (Id. at 71-73.) Defendants respond correctly (Dkt. No. 73, at 6-8), that absent a stipulation of the parties or order of this court, they were not required to answer more than the first twenty-five of plaintiff's interrogatories, which includes subparts. See Fed. R. Civ. P. 33(a)(1) ("Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts"). While "[l]eave to serve additional interrogatories may be granted to the extent consistent with Rule 26(b)(2),"*fn10 id., plaintiff asserts only that "the information [that remains] requested is reasonably calculated to lead to the discovery of admissible evidence in this action." (Dkt. No. 71 at 72.) The court's review of plaintiff's interrogatories demonstrates that they are ponderous and multifaceted, often assuming facts not in evidence and seeking inappropriate answers from defendants, such as concessions to ultimate legal issues and citations to legal authority. The court finds, therefore, that defendants' objections have been properly interposed, that there is no basis upon to compel supplemental answers, and no basis upon which to authorize the propounding of additional interrogatories. Accordingly, the court finds no error in the answers of defendants Brandon, Parker or Mayfield to plaintiff's Interrogatories (Set Two),

4. Plaintiff's Requests for Admissions

Plaintiff challenges the answers of all defendants to plaintiff's Requests for Admissions served on August 28, 2009.

Pursuant to the court's review of plaintiff's 190 requests for admission served upon Tilton (Dkt. No. 77-1, at 55-124), and Tilton's answers thereto (Dkt. No. 73, Exh. A), the court concludes that defendant Tilton has fully complied with the requirements set forth in Federal Rule of Civil Procedure 36. Tilton properly objected to Request Nos. 3-64, 70-74, 76-107, 110-46, 150, 164-65, 172-74, and 176, on the ground that each improperly asked defendant to admit to the authenticity of quoted portions of the California Code of Regulations and Department Operations Manual. Such requests are impermissible in scope and unduly burdensome. Tilton's answers to Request Nos. 69-70, 75, 108-09, 151, 156, 161-63, and 178, were sufficient based on his statement that, after a reasonable inquiry, he did not have sufficient information, knowledge, or belief to admit or deny each request. See Fed. R. Civ. P. 36(a)(4) ("[t]he answering party may assert lack of knowledge or information as a reason for failing to admit or deny only if the party states that it has made reasonable inquiry and that the information it knows or can readily obtain is insufficient to enable it to admit or deny"). Finally, the court agrees with defendant Tilton that he properly objected to plaintiff's Request Nos. 152-55, 157-59, 165-71, 177, and 179-89, on the ground that each improperly sought defendant's admissions to allegations of the complaint. While a party may "not object solely on the ground that the request presents a genuine issue for trial," Fed. R. Civ. P. 36(a)(5), here the requests improperly and repeatedly sought defendant's acquiescence to the entirety of plaintiff's complaint.

Plaintiff similarly challenges the answers of defendants Lockwood, Brandon, Parker and Mayfield to plaintiff's Requests for Admissions (Set One). For the same reasons set forth above, the court finds no merit to plaintiff's challenges.


Plaintiff moves for a "protective order" requiring defendants to respond to plaintiff's outstanding discovery requests, subject to an in camera review if necessary, and permitting plaintiff additional time within which to respond to defendant's motion for summary judgment. (Dkt. No. 76; see also Dkt. No. 78.) Plaintiff cites a 1999 order of this court authorizing the disclosure of confidential information to a habeas corpus petitioner and his counsel, pursuant to a protective order, Pifer v. Marshall, No.2:87-cv-1623 FCD KJM P (relevant orders filed April 12, 1999 (Dkt. No. 289) and May 27, 1999 (Dkt. No. 290), and Pratt v. Rowland, 770 F. Supp. 1399 (N.D. Cal. 1991), wherein a civil rights plaintiff seeking release from administrative segregation was permitted access to confidential documents pursuant to a "tightly drafted protective order." Id. at 1401 n.1.

The court, at his juncture, does not perceive the need to order the disclosure of confidential information or, therefore, to issue a protective order. The court has reviewed the exhibits submitted by defendants in support of their motion for summary judgment, and it appears that only a few rely on undisclosed confidential information. Plaintiff should respond to this information to his best ability based on the information currently available to him. Should the court determine, upon substantive review of defendants' motion, that it is necessary to review information that is being withheld, it will order the documents in camera and, at that time, decide to what extent disclosure should be made to plaintiff.

Accordingly, plaintiff's motion for protective order will be denied with respect to the requested disclosure of confidential information; plaintiff's further request for additional time within which to respond to defendants' motion for summary judgment will be denied as moot.


Plaintiff seeks leave of court "to amend his complaint and to add additional defendants involved in this action for failing to correct inaccuracies and unreliable information presented to the classification committee members to validate and retain plaintiff [] in the... SHU...." (Dkt. No. 71, at 8.) Plaintiff identifies the following as the defendants he seeks to add: (1) "the CSP-Sacramento Warden T. Malfi and his classification committee members and counselors for refusing to correct the unreliable and altered information...," (2) "the new Chief Secretary Director assigned to the California Department of Corrections and Rehabilitation (CDCR) for failing to prescribe... clear regulations which mandates (sic) what conduct is prohibited....," (3) "CDCR Office of Correctional Safety (OCS) members involved in this action who are the decision makers in charge to validate inmates as a prison gang associate...," and (4) "the CSP-Corcoran SHU Warden and Classification Committee members for conducting a meaningless classification review in regard to plaintiff's alleged gang validation...." (id. at 8-9.) Plaintiff has not included a copy of his proposed amended complaint (as required by Local Rule 137(c), although this omission is not determinative under these circumstances.

Since defendants have answered the complaint and substantial discovery has taken place in this case, plaintiff may amend his complaint only by leave of court or by written consent of defendants. Fed. R. Civ. P. 15(a)(2). A court should freely grant leave to amend a pleading when justice so requires. Id.; Foman v. Davis, 371 U.S. 178, 182 (1962). However, here the court finds that amendment of the complaint at this time would be both futile and unduly prejudicial to defendants. "Liberality in granting a plaintiff leave to amend is subject to the qualification that the amendment not cause undue prejudice to the defendant, is not sought in bad faith, and is not futile. Additionally, the district court may consider the factor of undue delay [although] [u]ndue delay by itself... is insufficient to justify denying a motion to amend." Bowles v. Reade, 198 F.3d 752, 757-58 (9th Cir. 1999).

Nearly two years ago, in January 2009, when the former magistrate judge made his findings and recommendations concerning defendants' motion to dismiss, the court instructed plaintiff how to seek leave to file an amended complaint. (See Dkt. No. 30, at 10-11.) When the district judge adopted the magistrate judge's findings and recommendations on March 3, 2009 (Dkt. No. 31), defendants immediately answered the original complaint (Dkt. No. 32) and a discovery order issued (Dkt. No. 33). Plaintiff then proceeded with the discovery process (see, e.g., Dkt. No. 35 et seq.), and did not seek leave to amend his complaint. To grant plaintiff's request at this time may result in extensive additional (but likely duplicative) discovery and a significant delay in the final disposition of this action. The defendants whom plaintiff now seeks to add are new supervisory personnel who may be responsible, if at all, for the periodic review of plaintiff's gang validation status rather than his initial classification, which is at the heart of this action. To the extent that these individuals are successors in the official capacities held by the named defendants, they will be parties to this action. Fed. R. Civ. P. 25(d)(1) (successor of public officer defendant named in his official capacity is automatically substituted as a party). The court therefore perceives no significant benefit to plaintiff by the addition of any of these defendants at this time.

Accordingly, plaintiff's motion for leave of court to file an amended complaint will be denied.


For the fourth time, plaintiff seeks appointment of counsel. (Dkt. No. 70; see also Dkt. Nos. 25, 34, 41; see also, Dkt. Nos. 28, 42.) Plaintiff contends that he, compared to the State Attorney General's office, is disadvantaged in legal training and resources, because English is his second language, and because plaintiff has limited access to the prison law library due to his incarceration in administratively segregated housing. Plaintiff asserts that the court's failure to appoint counsel has resulted in a denial of due process and equal protection, and subjected plaintiff to double jeopardy.

The challenges faced by plaintiff are not dissimilar to those faced by most prisoners pursuing civil rights actions and do not implicate constitutional rights. District courts lack authority to require counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States District Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990); Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). A finding of exceptional circumstances requires a likelihood that plaintiff will succeed on the merits of his action coupled with a limited ability to articulate his claims "in light of the complexity of the legal issues involved." Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004) (citations and internal quotations omitted). "Neither of these factors is dispositive and both must be viewed together before reaching a decision on request of counsel under section 1915(d)." Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (fn. omitted),

The court does not find the required exceptional circumstances in the instant case. While there may be some likelihood of success on the merits of plaintiff's claims, plaintiff has repeatedly demonstrated his ability to adequately (and prolifically) present his claims, including those pertinent to his discovery issues. Thus, the court again finds that appointment of counsel is not warranted at this time.


Plaintiff has sought to comply with the rules of this court and for conducting discovery. However, the progress of this case has been impeded by plaintiff's frequent, voluminous and often repetitive filings. The instant matters have required the court's review of (and defendants' response to) nearly a thousand pages of handwritten documents. Such endeavors have been required throughout this case. This action is not the only case before this court, yet it has required an inordinate amount of the court's time, often to review briefs and declarations that are duplicative in content yet presented with new titles. Plaintiff is formally cautioned that a litigant proceeding in forma pauperis may suffer restricted access to the court where it is determined that he has filed excessive motions in a pending action. DeLong v. Hennessey, 912 F.2d 1144 (9th Cir. 1990); see also Tripati v. Beaman, 878 F2d 351, 352 (10th Cir. 1989). Accordingly, if plaintiff does not exercise appropriate restraint in the future, the court will expressly consider whether to restrict plaintiff's access to the court for the remainder of this litigation.

The dates for filing and responding to defendants' further amended motion for summary judgment are set forth below. Plaintiff is reminded of the content requirements of his opposition.*fn11


For the foregoing reasons, IT IS HEREBY ORDERED that:

1. Plaintiff's Motion for Discovery (Dkt. No. 71) is granted in part. Within thirty (30) days of the filing date of this order, defendants shall personally serve plaintiff with a supplemental response to plaintiff's Request No. 1, Requests for Production (Set One), which may be set forth in a CDC Form 1030 or similarly format, and includes all information contained in plaintiff's central file that was initially relied upon to validate plaintiff as a gang affiliate, and has been thereafter relied upon to maintain such validation, properly redacted as set forth in California Code of Regulations, Title 15, Sections 3321 and 3378.

2. Plaintiff's Motion for Discovery (Dkt. No. 71) is denied on all other bases.

3. Plaintiff's Motion for Leave of Court to File an Amended Complaint (Dkt. No. 71) is denied.

4. Plaintiff's Motion for Protective Order (Dkt. No. 76) is denied without prejudice for the reasons set forth above.

5. Plaintiff's Request for an Extension of Time (Dkt. No. 74) is denied as moot.

6. Plaintiff's Motion for Appointment of Counsel (Dkt. No. 70) is denied without prejudice.

7. Plaintiff's Motion to Strike (Dkt. No. 75) Defendants' Amended Motion for Summary Judgment is granted.

8. Defendants' Amended Motion for Summary Judgment (Dkt. No. 67) is vacated without prejudice to the filing of a "Second Amended Motion for Summary Judgment," which should be served and filed during the week of November 15-19, 2010.*fn12

9. Plaintiff shall serve and file his Opposition within twenty-one (21) days after service of Defendants' Second Amended Motion for Summary Judgment.

10. Defendants may serve and file a Reply within fourteen (14) days after service of plaintiff's Opposition.


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