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Paul A. Gornick Sr v. California Dept. of Corrections

November 28, 2011

PAUL A. GORNICK SR., PLAINTIFF,
v.
CALIFORNIA DEPT. OF CORRECTIONS, J. PAYNE, DOCANTO, BRANDON, SGT. DICKS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge

ORDER

Pending before the Court are several motions ripe for adjudication. In addition, the docket reflects that this case is ready to be set for trial. Having reviewed the record, the Court enters the following Order.

PENDING MOTIONS

1. Motion for Review of in Camera Documents

On November 2, 2010, the Court ordered Defendants to provide certain documents for in camera review that were relevant to the claims or defenses in this case, but had been withheld from Plaintiff for security reasons. (Dkt. 92.) Defendants produced the documents on December 10, 2010. (Dkt. 98-107.) Plaintiff has been provided with a privilege log of the documents provided. (Dkt. 98, 98-1.)

Federal Rule of Civil Procedure 26(b) allows "[p]arties [to] obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party. . . ." The term "relevant" is further defined as information that is "reasonably calculated to lead to the discovery of admissible evidence, and it "need not be admissible at trial." Fed. R. Civ. P. 26(b)(1). Although relevance has a broad meaning, district courts are given wide discretion to apply the discovery rules in a way that is just. Fed. R. Civ. P. 1. When considering a protective order request, if a court finds particularized harm will result from disclosure of information to the public, then it balances the public and private interests to decide whether a protective order is necessary. Phillips ex rel. Estates of Byrd v. General Motors Corp., 307 F.3d 1206, 1211 (9th Cir. 2002).

Here, the Court finds that, although the documents are relevant to the claims in this case, prison security interests are at stake. To balance those interests, Defendants will be required to provide a redacted version of the records to Plaintiff, as follows. The training records shall be redacted except to show the use of force training each Defendant participated in. The investigatory reports and exhibits shall be redacted to delete all references to other inmates, except eyewitness inmates (if any), and to delete all references to any subject matter other than the incident and Plaintiff's injuries. In addition, personal information of any individual found in the reports shall be redacted, including contact information and personal identifiers, like birth dates. Defendants shall lodge a redacted set of documents with the Court with a notice of compliance. Any documents common to all investigatory reports can be provided to Plaintiff only once.

Plaintiff shall not show the documents to any other inmates, and Plaintiff shall return to Defendants' counsel the documents provided (including all copies made) at the end of the litigation.

2. Plaintiff's Motion to Appoint Counsel

Unlike criminal defendants, prisoners and indigents in civil actions have no constitutional right to counsel unless their physical liberty is at stake. Lassiter v. Dept. of Social Services, 452 U.S. 18, 25 (1981). Whether a court appoints counsel for indigent litigants is within the court's discretion. Wilborn v. Escalderon, 789 F.2d 1328, 1330-31 (9th Cir. 1986); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1990).

In civil cases, counsel should be appointed only in "extraordinary cases." Id. at 1330. To determine whether extraordinary circumstances exist, the court should evaluate two factors: (1) the likelihood of success on the merits of the case, and (2) the ability of the plaintiff to articulate his claims pro se in light of the complexity of legal issues involved. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1990). Neither factor is dispositive, and both must be evaluated together. Id.

To date, Plaintiff has articulated his claims sufficiently. While it is unfortunate that there are some limitations placed upon him because of his incarceration status, he is at no substantial disadvantage compared to other inmates, and, in fact, his organized and well-prepared filings in this case has shown that he can adequately protect his interests. The issues in this case are not complex: correctional officers either beat Plaintiff without provocation or did not beat Plaintiff at all. These are factual issues that will be determined upon the evidence presented and the credibility of the parties and witnesses.

Pro se litigants are given substantial leeway at trial to present their evidence and examine witnesses. Court staff will be on hand to assist the parties with the handling and marking of evidence in the courtroom. Plaintiff must follow prison access-to-courts rules for contacting inmate witnesses prior to trial, but he will be able to submit his list of inmate witnesses to the Court and request transport orders for them in advance of trial.

Because of the lack of extraordinary circumstances in this case, paired with Plaintiff's above-average ability to pursue his case, Plaintiff's ...


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