The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
Pending before the Court are several motions ripe for adjudication. Having reviewed the record, the Court enters the following Order.
1. Motion for Reconsideration for Full Disclosure of Documentation (Dkt. 136)
The Court earlier ordered Defendants to provide Plaintiff with redacted copies of records of any incidents reflecting any Defendant's alleged or actual involvement in alleged or actual excessive force incidents with any inmates. (Order of November 2, 2010, Dkt. 92.)The Court limited disclosure to incidents that occurred within two years of Plaintiff's alleged incident (between December 2002 and the date of the incident on December 8, 2004). (Id.) Plaintiff argues that all incidents, no matter how far back in time, from the date Defendants were first hired, are within the broad scope of discovery. One of the Court's concerns was that requiring Defendants to search out and find such incidents would be unduly burdensome. To balance the need for the documents with the difficulty in searching for them, the Court will grant the motion for reconsideration in part. If any such records are found in Defendants' personnel files, Defendants shall produce them to Plaintiff in redacted form. However, Defendants shall not be required to search through thousands of inmate complaints to find any such documents, because it would be too burdensome. If no relevant pre-December 2002 records are found in the personnel files, then Defendants shall so state in their notice of compliance.
2. Motion for 90-Day Extension of Time (Dkt. 134)
Plaintiff seeks an additional 90 days for trial preparation, which would move the trial from March to June. (Dkt. 134.) Defendants do not oppose moving the trial (Dkt. 135.) Good cause appearing, the Court will vacate the current pretrial and trial schedule and re-set those dates, as provided below.
3. Plaintiff's Motion to Reconsider Appointment of Counsel and Motion for Court Order (Dkts. 132, 152)
For the reasons set forth in the Court's previous Orders, the Motion to Reconsider Appointment of Counsel will be denied. (Dkt. 132.) Plaintiff's litigation abilities far exceed those of most inmates. In Lewis v. Casey, 518 U.S. 343 (1996), the Court explained the limitations of Bounds v. Smith, 430 U.S. 817, 828 (1977), providing for inmate access to the courts. There, the Court emphasized that "Bounds did not create an abstract, freestanding right to a law library or legal assistance." 518 U.S. at 351.
The Casey decision limits the application of Bounds to initial filings of prisoner cases involving their convictions or conditions of confinement. Particularly, the Court stated:
It must be acknowledged that several statements in Bounds went beyond the right of access recognized in the earlier cases on which it relied, which was a right to bring to court a grievance that the inmate wishes to present. These statements appear to suggest that the State must enable the prisoner to discover grievances, and to litigate effectively once in court. These elaborations upon the right of access to the court have no antecedent in our pre-Bounds cases, and we now disclaim them." 518 U.S. at 354 (emphasis added).
Plaintiff's inability to more fully litigate his claims are "incidental (and perfectly constitutional) consequences of conviction and incarceration." Id. at 355. It appears that the prison has in place a set of policies and procedures to help inmates investigate their cases within the confines of the security and privacy protections inherently required in prison administration. Plaintiff's concerns in his "Motion for Court Order," is that prison officials have frustrated Plaintiff's case, hindered his access to the court, and failed to comply with their own rules and regulations. (Dkt. 152, p. 1.)
While the United States Court of Appeals for the Ninth Circuit has confirmed that prison officials have no affirmative duty to help an inmate litigate his claims beyond the pleadings stage, that Court has clarified that the law prohibits prison officials from actively interfering with an inmate's litigation during the pendency of the case. Silva v. Vittorio, 598 F.3d 1090 (9th Cir. 2011). In other words, "[t]his right does not require prison officials to provide affirmative assistance in the preparation of legal papers, but rather forbids states from 'erect[ing] barriers that impede the right of access of incarcerated persons.'" Id. at 1102 (citation omitted).
Here, the Court will provide Plaintiff with an extension of time for the pretrial deadlines and the trial date in order to accommodate his need to prepare for trial pro se, and the court will require Defendants' counsel to call or meet with prison officials within 21 days after entry of this Order to clarify the process available to Plaintiff (and the particular prison officials who will be involved in the process) to enable Plaintiff to interview his witnesses in writing or in person, in accordance with what prison procedures may allow.*fn1 To facilitate the call or the meeting, Defendants' counsel shall provide prison officials in advance of the meeting the full contents of Plaintiff's Motion for Court Oder and exhibits addressing his difficulties with preparing for trial. (Dkt.152). ...