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Christopher Grabek v. Kathleen Dickinson

January 13, 2012


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge



Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court are: 1) plaintiff's "motion for discovery," filed on September 14, 2011, to which defendants filed their opposition on September 28, 2011; 2) plaintiff's "motion for adjudication and settlement of case," filed on September 30, 2011; 3) plaintiff's renewed motion for appointment of counsel, filed on October 4, 2011; 4) plaintiff's motion to extend the deadline for filing a pretrial dispositive motion and for a change of venue, filed on December 30, 2011; 5) defendants' "requests for leave to act beyond time and to modify the scheduling order to extend time to move for summary judgment" and a "statement of non-opposition to plaintiff's request for an extension of time," filed on January 6, 2012.

Motion for Discovery

Plaintiff filed a motion wherein plaintiff is evidently seeking to compel further discovery; however, in doing so he fails to identify what discovery requests are at issue (possibly interrogatories but that is not clear), whether the requests were directed to all defendants or to a particular one, and precisely what the requests or the responses were. See Motion at docket # 29. As defendants point out, plaintiff fails to comply with L.R. 250.2(c) and/or L.R. 250.3(c), by failing to provide those interrogatories and/or requests for production and the responses to which plaintiff takes issue. Opposition at docket # 30. Plaintiff states that he is seeking the names of all persons "indirectly referred to," referring to "unnamed" witnesses who could testify to matters in the case for the purpose of "possible depositions and interrogatories."

The Court does not hold prisoners proceeding pro se to the same standards that it holds attorneys. However, at a minimum, as the moving party plaintiff bears the burden of informing the court of which discovery requests are the subject of his motion to compel and, for each disputed response, why defendant's objection is not justified.

Waterbury v. Scribner, 2008 WL 2018432 *1 (E.D. Cal. 2008).

Plaintiff does state that he is also requesting the name of "'Head of Health Care Billing' up to December 2008 and through July 2009." Motion at docket # 29. "[U]p to December 2008 and through July 2009" does not frame a coherent starting deadline. Plaintiff does not state clearly what he means, but he is apparently referencing his allegation that he was improperly billed by the billing department at U.C.S.F. (University of California at San Francisco) before further treatment at U.C.S.F. was allowed, after the prison facility had refused to pay the medical bills. Plaintiff does not set forth what means he has employed to discover this information, such as whether or not he served any defendant with an interrogatory seeking the information. Indeed, defendants contend that plaintiff never did serve a discovery request seeking that information. Opp. at docket # 30. The court cannot compel defendants to provide such information if plaintiff never made any appropriate request for it. Plaintiff's wholly inadequate motion to compel must be denied.

Plaintiff's Motion to Settle Case

Plaintiff proposed an offer, which he filed in this court, for defendants to pay him $15,000.00 and court costs, for which he would agree to dismiss his case. See Docket # 31. He also proposes that the state additionally rescind whatever restitution plaintiff has assessed against him.

Defendants have filed no response to this proposal, indicating a lack of interest in the proposed terms. This motion will be denied without prejudice to all parties informing this court, within fourteen days, whether they believe that a settlement conference in this matter might prove fruitful.

Appointment of Counsel

Plaintiff has again requested the appointment of counsel. As plaintiff has previously been informed, the United States Supreme Court has ruled that district courts lack authority to require counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. 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). Plaintiff has provided information to show he is seeking assistance himself but asks that the court appoint counsel for him should he not be successful in retaining pro bono counsel. Plaintiff states that he is retained in administrative segregation and that such assistance as he had has become even more limited. However, subsequent to the filing of this request, plaintiff filed a notice of change of address, so it is not clear whether plaintiff is retained in Ad Seg at his new location. In any event, in the present ...

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