United States District Court, E.D. California
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se with this 42 U.S.C.
§ 1983 civil rights action. On March 15, 2017, the court
partially granted both plaintiff's and defendants'
motions to compel. ECF No. 90. The court instructed the
parties that prior to filing any further motions to compel,
they “SHALL MEET AND CONFER . . . AND SHALL MAKE A
GOOD FAITH ATTEMPT TO RESOLVE THE ISSUES
INFORMALLY.” Id. at 9. Defendants,
arguing that plaintiff has “persistently refused to
comply with this Court's orders to respond to
Defendants' written discovery, ” now move for
terminating sanctions and plaintiff has filed another motion
to compel. ECF Nos. 94, 96. Plaintiff also requests the
appointment of counsel and defendants move to modify the
discovery and scheduling order. ECF Nos. 102, 105. All
motions are denied. As explained below, the parties'
motions relating to their discovery disputes are denied
without prejudice for failure to properly meet and confer.
Plaintiff's request for the appointment of counsel is
denied without prejudice and defendants' motion to modify
the discovery and scheduling order is denied as moot.
Defendants' Motion for Terminating Sanctions (ECF No. 94)
and Plaintiff's Motion to Compel (ECF No. 96)
apparent from the parties' motions that they have not
been able to meaningfully meet and confer regarding the
outstanding discovery issues in this case. On April 10, 2017,
defense counsel sent plaintiff a letter identifying
deficiencies in plaintiff's discovery responses. ECF No.
94-2, ¶ 3, Ex. D. In a response dated April 17, 2017,
plaintiff requested a phone call “to resolve the
discovery issues” and also asked defense counsel to
“provide the discovery that the court ordered.”
Id., Ex. E. Because plaintiff's letter did not
identify any specific deficiencies in defendants'
responses, it achieved little in the way of moving the
parties toward a resolution of their discovery disputes. Upon
receiving plaintiff's letter, however, defense counsel
promptly set up a phone call for May 4, 2017. ECF No. 94-2,
¶ 3. Plaintiff did not know about the call in advance
and informed defense counsel that he was unprepared. ECF No.
97 at 2; ECF No. 103 at 1; ECF No. 94-2 ¶ 4. Plaintiff
requested another call with at least a day's notice. ECF
No. 97 at 2. According to plaintiff, defense counsel refused.
ECF No. 103 at 1-2. Although defense counsel believes that
plaintiff was feigning surprise regarding the subject of the
phone call and notes that plaintiff made numerous remarks
conveying his unwillingness to cooperate, plaintiff ought to
have been given notice of the call. See E.D. Cal.
Local Rule, 251(b) (requiring that parties meet and confer
“at a time and place and in a manner mutually
convenient . . . .”). Before determining whether
plaintiff should be subjected to terminating sanctions, a
measure of last resort, he must first be afforded a
meaningful opportunity to meet and confer. Given the
parties' half-hearted efforts in this regard, their
motions will be denied without prejudice.
court will grant the parties another 60 days within which to
file any motions relating to their discovery disputes, and
will also reset the deadline for filing dispositive motions.
Accordingly, defendants' request to modify the discovery
and scheduling order is denied as moot.
Plaintiff's Request for the Appointment of
requests that the court appoint counsel. District courts lack
authority to require counsel to represent indigent prisoners
in section 1983 cases. Mallard v. United States Dist.
Court, 490 U.S. 296, 298 (1989). In exceptional
circumstances, the court may request an attorney to
voluntarily to represent such a plaintiff. See 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).
When determining whether “exceptional
circumstances” exist, the court must consider the
likelihood of success on the merits as well as the ability of
the plaintiff to articulate his claims pro se in light of the
complexity of the legal issues involved. Palmer v.
Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Having
considered those factors, the court finds there are no
exceptional circumstances in this case.
IT IS HEREBY ORDERED that:
Defendants' motion for terminating sanctions (ECF No. 94)
is denied without prejudice;
Plaintiff s motion to compel (ECF No. 96) is denied without
motions to compel with regard to the responses ordered in the
court's March 15, 2017 order must be filed within 60 days
of the date of this order. THE PARTIES SHALL MEET AND
CONFER PRIOR TO FILING ANY SUCH MOTION AND SHALL MAKE A GOOD
FAITH ATTEMPT TO RESOLVE THESE ISSUES INFORMALLY.
dispositive motions shall be filed within 90 days from the
date of this order.
parties are again admonished that failure to serve full and
complete responses in accordance with this order may result
in sanctions, including monetary sanctions, ...