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Heilman v. Sanchez

United States District Court, E.D. California

March 27, 2018

THOMAS JOHN HEILMAN, Plaintiff,
v.
L. SANCHEZ, Defendant.

          ORDER

          DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE.

         Plaintiff is a state prisoner proceeding pro se and in forma pauperis, with a civil rights action pursuant to 42 U.S.C. §1983. Plaintiff is alleging that his First and Fourteenth Amendment rights were violated when defendant threatened retaliation against him were he to file grievances against prison officials. To date, a number of motions and requests have been filed in this case, including, but not limited to motions to appoint counsel, motions to compel, and requests that subpoena duces tecum be issued. The court addresses herein the motions and requests that are outstanding.

         PROCEDURAL HISTORY

         On January 26, 2010, plaintiff filed this action in Solano County Superior Court. (See ECF No. 1-1 at 2-29 et seq.). The matter was removed to the Northern District Court of California by defendant on April 23, 2010, and eventually transferred to this district on May 6, 2010. (See ECF Nos. 1, 7).

         Plaintiff's first amended complaint, filed December 22, 2010 (ECF No. 14), contained six claims, all of which generally related to violations of his First and Fourteenth Amendment rights to have access to courts and to be free from retaliation when exercising his constitutional rights. (See id. at 7-21). Specifically, plaintiff alleged that the originally named defendants, via threats, intimidation and/or retaliation, prevented and/or attempted to prevent him from filing grievances as well as court pleadings. (See generally id.).

         On November 22, 2011, this court dismissed plaintiff's complaint for failure to state a cognizable claim against any of the named defendants. (See ECF Nos. 20, 22). Plaintiff appealed, and on November 7, 2014, the Ninth Circuit affirmed in part, reversed in part, and remanded the case for further proceedings. (See ECF No. 36).[1]

         The remaining issue in this matter, as determined by the Ninth Circuit, is whether plaintiff has a viable First Amendment retaliation claim against defendant who plaintiff alleges threatened him with disciplinary action if he accessed the prison's grievance system. (See ECF No. 36 at 5; see generally ECF No. 85 at 7-8).

         On remand, on February 17, 2016, the sole remaining defendant filed a motion for summary judgment. (ECF No. 64). Defendant also filed an answer to the complaint on March 10, 2016. (ECF No. 74). On January 9, 2017, the court, in relevant part, denied defendant's summary judgment motion with respect to plaintiff's First Amendment retaliation claim. (See ECF Nos. 85, 99, 104).

         On March 29, 2017, this court issued a discovery and scheduling order. (See ECF No. 108). Since then, plaintiff has filed numerous motions in this court, some of which remain outstanding. (See ECF Nos. 109, 113, 120, 128, 132, 134). A motion filed by defendant remains outstanding as well. (See ECF No. 122). The court addresses each of these motions herein, as well as a number of “requests” and other pleadings filed by plaintiff. (See ECF Nos. 115, 119, 125, 126, 129, 130, 135, 137, 139, 141).

         In January 2018, the court was informed that the parties were interested in participating in a settlement conference. The matter is currently scheduled for April 4, 2018, in front of United States Magistrate Judge Kendall J. Newman. (See ECF No. 136).

         The court acknowledges the proximity of the issuance of this order to the pending settlement conference date and that the determinations herein may affect the parties' desire to engage in settlement proceedings. Therefore, if after reviewing this order, either party does not wish to proceed with the settlement conference, the party will be required to notify the court immediately.

         REVIEW OF MOTIONS AND REQUESTS

         I. Plaintiff's Motion to Appoint Counsel (ECF No. 109)

         A. Relevant Facts

         Plaintiff requests for a second time that the court appoint counsel to his case. (See ECF No. 109). Plaintiff's previous request for counsel, filed in February 2016 (ECF No. 63), was denied due to his failure to show that exceptional circumstances existed that warranted the appointment of counsel. (See ECF No. 79).

         In support of plaintiff's instant request for counsel, plaintiff states that he meets the first prong - the likelihood of success on the merits requirement - because: (1) in July 2014, the court's dismissal of the case for failure to state a claim was reversed and remanded in part by the Ninth Circuit, and (2) in June 2016, this court denied defendant's motion for summary judgment in part. (See ECF No. 109 at 2-5). To support the second prong - the “ability of the plaintiff to articulate his claims pro se” requirement - plaintiff asserts that: (1) he is sixty years old, indigent and representing himself; (2) he has been prosecuting this case since 2007, and the case is likely to proceed to trial; (3) he will not be able to successfully prosecute this case at trial without the assistance of a qualified legal professional, and (4) his attempts to secure legal representation on a contingency basis have been unsuccessful. (See id. at 5-6).

         B. Legal Authority

         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 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 plaintiff's 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) (stating same and concluding district court did not abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional circumstances is on the plaintiff. Id. Neither of these factors is dispositive and instead must be viewed together. Palmer, 560 F.3d at 970 (citing Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)), but see Richards v. Harper, 864 F.2d 85, 87-88 (9th Cir. 1988) (finding no likelihood of success on merits and not addressing “ability to articulate claims pro se” prong in exceptional circumstances analysis prior to denying motion for counsel). Circumstances common to most prisoners, such as lack of legal education and limited law library access, do not establish exceptional circumstances that warrant a request for voluntary assistance of counsel.

         C. Analysis

         1. First Prong: Likelihood of Success on the Merits

         The reasons plaintiff provides in support of the first prong of the exceptional circumstances analysis - likelihood of success on the merits - are inadequate. First, implicit in a circuit's reversal and remand of a district court decision is not necessarily that the affected claim therein is one that has sufficient merit that will ultimately lead to a grant of relief. This court dismissed plaintiff's complaint because it believed that plaintiff had failed to present any cognizable claims, that is, any claims that were viable and therefore, could be litigated. (See ECF Nos. 20, 22). The Ninth Circuit reversed and remanded in part because it determined that some of the facts as presented established that plaintiff did, in fact, have a cognizable First Amendment retaliation claim. (See ECF No. 36 at 5-6).

         The Ninth Circuit regularly reverses and remands cases without making a substantive finding on the salient issue warranting reversal. Had the Circuit, however, believed that plaintiff's case was meritorious on its face as presented on appeal, it had the power not only to reverse this court's decision but to simultaneously grant plaintiff relief outright without remand. See, e.g., Jones v. Taylor, 763 F.3d 1242, 1246 (9th Cir. 2014) (assuming actual innocence claim was cognizable, finding insufficient showing in claim to merit relief and reversing district court's decision without remand); see also Yao v. I.N.S., 2 F.3d 317 (9th Cir. 1993) (finding petitioner's claim cognizable but without merit and denying petition outright). However, the Circuit did not grant plaintiff relief outright. For these reasons, plaintiff's argument that the Circuit's partial reversal and remand indicates the likelihood of his claim's success on the merits fails.

         As for plaintiff's argument that this court's partial denial of defendant's motion for summary judgment also demonstrates his likelihood of success on the merits, it fails as well. A grant of a motion for summary judgment is appropriate when the moving party can show that “there is no genuine dispute as to any material fact” and that therefore, the movant “is entitled to judgment as a matter of law.” Fed. R. Civ. Proc. 56(a). The court denied defendant's motion for summary judgment in part pursuant to Federal Rule of Civil Procedure 56(d) because it determined that plaintiff was correct in his assertion that the summary judgment motion was premature; that it would be virtually impossible for plaintiff to properly oppose defendant's summary judgment motion without the benefit of first conducting discovery. (See ECF No. 85 at 7). In so doing, however, the court made no finding as to the viability of plaintiff's retaliation claim. (See generally id.). For this reason, this argument also fails to establish the likelihood of success on the merits prong.

         2. Second Prong: Ability to Articulate Claims Pro Se

         The reasons plaintiff provides in support of the second prong of the exceptional circumstances analysis are also inadequate. Neither plaintiff's age nor his indigence have any bearing on his ability either to articulate his claims or to adequately represent himself. See Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984) (finding court was within its discretion when it denied appointment of counsel to sixty-year old appellant proceeding in forma pauperis with no background in law who thoroughly presented issues in petition). The record indicates that plaintiff, though indigent, has adequately represented himself thus far in this matter. Furthermore, the time plaintiff has spent to date litigating this case has no bearing on his ability to adequately represent himself. On the contrary, the fact that this case remains on the court's docket when it was filed in 2010 - in part due to plaintiff's numerous pleadings filed sua sponte - indicates that neither the continued litigation of this case to trial nor the complexity of the issues are beyond plaintiff's acumen. Moreover, the fact that plaintiff had appointed counsel for his Ninth Circuit appeal which led to a partial reversal and remand (see ECF No. 36 at 3) is not persuasive given that the Circuit's decision was based in part on its reading of plaintiff's original and amended complaints (see id. at 2) which plaintiff compiled by himself. Thus, plaintiff has not established that his ability to articulate his claims pro se in light of the complexity of the legal issues involved is lacking.

         For these reasons, the court finds that plaintiff has failed to meet his burden of demonstrating exceptional circumstances warranting the appointment of counsel at this time. Consequently, his request for appointment of counsel (ECF No. 109) will be denied without prejudice.

         II. Plaintiff's Motion to Compel Defendant to Comply with Discovery Requests andReply” and Motion to Withdraw Same (ECF Nos. 113, 116, 119, 127)

         A. Relevant Facts 1. Plaintiff's Motion to Compel

         On June 5, 2017, plaintiff filed a motion to compel. (ECF No. 113). In it, plaintiff asked that defendant be ordered to respond to the discovery requests related to his claim of defendant's refusal to make copies of documents for plaintiff's court actions. (See id. at 1-2). He also asked for sanctions. (Id. at 14). In the same motion plaintiff also seeks clarification of the court's partial grant and denial of defendant's motion for summary judgment issued June 16, 2017. (See ECF No. 113 at 13; see also ECF No. 85).

         Shortly thereafter, defendant opposed the motion to compel arguing that it should be denied because: (1) plaintiff had failed to attempt to meet and confer prior to filing the motion to compel in violation of Local Rule 251; (2) defendant had properly and fully responded to plaintiff's discovery requests, and (3) plaintiff had failed to indicate which discovery responses he believed were inadequate. (See ECF No. 116 at 1-3).

         2. Plaintiff's “Replies” / Motion to Withdraw and Refile

         On June 26, 2017, plaintiff filed a “reply” to defendant's opposition to his motion to compel. (ECF No. 119). In the reply, plaintiff requested that his motion to compel (ECF No. 113) be withdrawn without prejudice to allow him “to refile on these issues and to include such additional request for a court order to compel the defendant to provide supplemental responses to discovery requests.” (See id. at 1-4).

         On July 25, 2017, plaintiff filed a second “reply” to defendant's opposition to his motion to compel discovery. (See ECF No. 127). The statements therein were somewhat similar to plaintiff's first reply. (Compare ECF No. 119, with ECF No. 127). Plaintiff claimed he had yet to receive supplemental discovery he had requested of defendant (see ECF No. 127 at 3), and plaintiff reiterated that he had requested that his motion to compel be withdrawn (see id. at 2, 5-6).

         B. ...


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