United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S MOTIONS TO APPOINT
COUNSEL (ECF Nos. 139, 143, 144, 149) ORDER GRANTING
DEFENDANTS' MOTION FOR TERMINATING SANCTIONS (ECF No.
128) ORDER DENYING MOTION TO MODIFY DEFENDANTS' DEADLINES
IN THE SCHEDULING ORDER AS MOOT (ECF No. 134) ORDER DENYING
DEFENDANTS' MOTIONS TO STRIKE PLAINTIFF'S
UNAUTHORIZED SUR-REPLIES AND GRANTING PLAINTIFF'S MOTION
TO ACCEPT PLAINTIFF'S SUR-REPLY (ECF Nos. 137, 139, 142)
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AS
MOOT (ECF No. 141) ORDER GRANTING PLAINTIFF'S MOTIONS TO
CLARIFY AND FOR STATUS UPDATE (ECF Nos. 153, 154)
LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE
Andre Wells (“Plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
This action proceeds on Plaintiff's Eighth Amendment
claims against Defendant T. Cagle for excessive force and
against Defendant R. Perez for failure to intervene.
Relevant Procedural History
the screening of Plaintiff's first amended complaint,
discovery was opened in this action on August 20, 2013. (ECF
No. 33.) Defendants have since unsuccessfully attempted to
take Plaintiff's deposition four times. (Declaration of
Arthur B. Mark III, ECF No. 128-2, ¶ 2.)
first noticed Plaintiff's deposition on March 6, 2014.
(Mark Decl., Ex. A.) On April 4, 2014, the Court granted
Plaintiff a postponement of his deposition pending resolution
of his request for appointment of counsel, and directed the
parties to file supplemental information regarding
Plaintiff's current mental functioning and psychological
condition. (ECF No. 57.) Based on the supplemental health
records submitted by Plaintiff and information submitted by
Defendants regarding Plaintiff's GED classes, the Court
denied Plaintiff's motion for counsel on June 17, 2014.
(ECF No. 71.)
served a second notice of deposition on June 18, 2014. (Mark
Decl., ¶ 3, Ex. B.) Plaintiff appeared, but stated that
he had not received the notice of deposition and was not
prepared to proceed. (Mark Decl. ¶ 4, Ex. C.)
Defendants' counsel noticed Plaintiff's deposition a
third time on August 8, 2014. (Mark Decl., Ex. D.) Plaintiff
did not provide advance notice to Defendants' counsel
that he could not proceed. (Mark Decl. ¶ 5.)
Defendants' counsel made two attempts to secure
Plaintiff's appearance on the day of the deposition, but
Plaintiff refused to appear. (Mark Decl. ¶ 5, Ex. E.)
August 8, 2014, Plaintiff filed a motion requesting a stay of
this action or, in the alternative, appointment of counsel,
due to his imminent transfer to an intermediate care facility
on the basis of his mental health status. (ECF No. 81.)
Defendants filed an opposition, while Plaintiff filed a
renewed motion for appointment of counsel and a motion
requesting a ruling on his motion for appointment of counsel.
(ECF Nos. 87, 96, 97.)
December 19, 2014, the Court granted Plaintiff's request
for a stay of this action, finding that the serious nature of
Plaintiff's mental health issues, including repeated
placement in a crisis bed and in an Acute Psychiatric
Program, supported a stay. (ECF No. 100.) The action was
stayed for 90 days to allow Plaintiff an opportunity to
gather materials, secure his legal documents, and marshal
evidence of his mental status for any renewed motion for the
appointment of counsel, and the parties were directed to
submit written status reports regarding Plaintiff's
mental health and ability to prosecute this action.
March 18, 2015, Plaintiff renewed his motion for the
appointment of counsel. In support, Plaintiff submitted a
letter from his psychiatrist, Dr. Sanmukan Surulinathan of
DSH-Stockton. (ECF No. 107.) On March 20, 2015, Defendants
filed a status report regarding Plaintiff's mental health
status and ability to prosecute this action, also relying on
Dr. Surulinathan's report. (ECF No. 108.) Plaintiff also
filed numerous motions requesting judicial notice, (ECF Nos.
103, 116, 122), subpoenas, (ECF Nos. 102, 104, 119),
sanctions, (ECF Nos. 107, 122), and motions for counsel, (ECF
Nos. 107, 109, 112, 117, 122). The Court ultimately denied
all of Plaintiff's motions, including his requests for
counsel, finding that Plaintiff's documented mental
health issues have not precluded Plaintiff from a consistent
ability to articulate his claims in this action. (ECF No.
to the Court's amended scheduling order, Defendants'
counsel served a fourth notice of deposition setting
Plaintiff's deposition for May 13, 2016. (Mark Decl.
¶ 7, Ex. F.) Plaintiff did not provide advance notice
that he was unwilling to proceed with his deposition, or that
he did not intend to appear. (Mark Decl. ¶ 7.) Plaintiff
again refused to appear for his deposition. (Mark Decl.
¶ 7, Ex. G.)
19, 2016, Defendants filed a motion for terminating sanctions
on the basis of Plaintiff's refusal to cooperate with his
deposition and failure to prosecute. (ECF No. 128.) Following
the Court's June 21, 2016 order directing Plaintiff to
file a response to the motion, (ECF No. 130), Plaintiff filed
an opposition on July 1, 2016, (ECF No. 131). Defendants
filed a reply on July 8, 2016. (ECF No. 132.) Plaintiff filed
a sur-reply, (ECF No. 136), and Defendants filed a motion to
strike Plaintiff's unauthorized sur-reply, (ECF No. 137).
Plaintiff filed a motion for the Court to accept
Plaintiff's sur-reply together with a motion to appoint
counsel on August 4, 2016. (ECF No. 139.)
11, 2016, Defendants filed a motion to modify Defendants'
deadlines in the scheduling order. (ECF No. 134.) Plaintiff
filed an opposition on July 21, 2016, (ECF No. 135), and
Defendants filed a reply on July 28, 2016, (ECF No. 138).
Plaintiff filed a sur-reply, (ECF No. 140), and Defendants
filed a motion to strike the sur-reply, (ECF No. 142).
Plaintiff filed a response to Defendants' motion on
August 22, 2016, together with a further motion to appoint
counsel. (ECF No. 144.)
filed a motion for summary judgment on the pleadings on
August 8, 2016, (ECF No. 141), and a further motion to
appoint counsel on August 17, 2016, (ECF No. 143). Defendants
filed an opposition to Plaintiff's motions for the Court
to accept his sur-reply to Defendants' motion for
terminating sanctions and further motions to appoint counsel
on August 24, 2016, (ECF No. 145), and an opposition to
Plaintiff's motion for summary judgment on August 29,
2016, (ECF No. 146.) Plaintiff filed replies on September 12,
2016. (ECF Nos. 147, 148.)
filed an addition to his pending motions for voluntary
appointment of counsel, which was docketed as another motion
to appoint counsel, on December 13, 2016. (ECF No. 149.)
Defendants filed an opposition on December 16, 2016, and
Plaintiff filed a reply on January 3, 2017. (ECF Nos. 150,
pending are Plaintiff's motions to clarify and request
for a status update regarding his motions for appointment of
counsel. (ECF Nos. 153, 154.)
above summarizes merely part of the proceedings in this case.
The docket currently stands at 154 entries. While this case
has been pending, the Court has postponed Plaintiff's
deposition and stayed this action in order to address
Plaintiff's mental health status on his ability to
litigate this action and provide deposition testimony. In
response to Plaintiff's repeated motions requesting
appointment of counsel, (see ECF Nos. 18, 35, 55,
73, 81, 96, 97, 107, 116, 120, 122), the Court has
consistently determined that Plaintiff's mental health
status has not impeded his ability to present the merits of
his claims without the assistance of counsel. Nevertheless,
he has repeatedly refused to appear or cooperate with
Defendants' attempts to take his deposition, or to
otherwise advance this matter toward disposition on the
Plaintiff's Motions to Appoint Counsel
Plaintiff has previously been informed, he does not have a
constitutional right to appointed counsel in this action,
Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir.
1997), withdrawn on other grounds, 154 F.3d 952, 954 n. 1
(9th Cir. 1998), and the Court cannot require an attorney to
represent Plaintiff pursuant to 28 U.S.C. §1915(e)(1).
Mallard v. United States District Court for the Southern
District of Iowa, 490 U.S. 296, 298 (1989). However, in