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Wells v. Cagle

United States District Court, E.D. California

April 4, 2018

ANDRE WELLS, Plaintiff,
v.
CAGLE, et al., Defendants.

          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

         I. Background

         Plaintiff 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.

         A. Relevant Procedural History

         Following 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.)

         Defendants 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.)

         Defendants 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.)

         On 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.)

         On 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. (Id.)

         On 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. 125.)

         Pursuant 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.)

         On May 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.)

         On July 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.)

         Plaintiff 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.)

         Plaintiff 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, 151.)

         Also pending are Plaintiff's motions to clarify and request for a status update regarding his motions for appointment of counsel.[1] (ECF Nos. 153, 154.)

         The 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 merits.

         II. Discussion

         A. Plaintiff's Motions to Appoint Counsel

         As 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 certain ...


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