Clark v. McCormick

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Lon Allen Clark, Case No. 2:21-cv-00173-RFB-DJA 6 Plaintiff, 7 Order v. 8 Cory McCormick; et al., 9 Defendants. 10 11 Before the Court are Plaintiff Lon Allen Clark’s motions for appointment of counsel (ECF 12 Nos. 70, 78) and motion “for the Court to have Defendant produce unedited version of body cam 13 footage” (ECF No. 71). Because the Court finds that Plaintiff’s motions for appointment of 14 counsel are premature, it denies his motions without prejudice. The Court construes Plaintiff’s 15 motion “for the Court to have Defendant produce unedited version of body cam footage” as a 16 motion to compel. Because the Court cannot find that the footage was edited based on the 17 parties’ competing assertions, the Court denies Plaintiff’s motion to compel without prejudice. 18 I. Discussion. 19 A. The Court denies Plaintiff’s motions for appointment of counsel. 20 Courts have authority to request that an attorney represent any person unable to afford 21 counsel. 28 U.S.C. § 1915(e)(1). Whether to appoint counsel is within the discretion of the 22 district court and requires a showing of exceptional circumstances. Agyeman v. Corrections 23 Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004). To determine whether exceptional 24 circumstances exist, courts consider the likelihood that the plaintiff will succeed on the merits as 25 well as the plaintiff’s ability to articulate his claims “in light of the complexity of the legal issues 26 involved.” Id. Neither factor is dispositive, and both must be viewed together. Wilborn v. 27 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). 1 In Kern v. Henry, the Honorable District Judge Richard F. Boulware appointed counsel to 2 an inmate who asserted that HDSP violated his Eighth Amendment rights by imposing 3 unconstitutional conditions of confinement. See Kern, 2017 U.S. Dist. LEXIS 62435, at *1-4. 4 The court first found that the inmate’s claim was likely to succeed because it had survived 5 summary judgment and would proceed to trial. Id. It then found that the inmate would have 6 difficulty articulating his claim considering its complexity. Id. The court explained: 7 Plaintiff’s Eighth Amendment conditions of confinement claim will 8 involve both nuances of the law as it relates to different aspects of confinement, e.g. exercise and hygiene, and trial preparation in 9 relation to witnesses who are confined (or were confined) with Plaintiff. While Plaintiff has been able to sufficiently raise genuine 10 issues of material fact for the one claim that is proceeding, this 11 standard is different and less burdensome than what he will face at trial. The court finds that complexity of the relevant legal issues and 12 requirements for trial preparation in this case warrant the appointment of counsel. 13 14 Id. 15 Here, the Court denies Plaintiff’s motions for appointment of counsel as premature. (ECF 16 Nos. 70, 78). Defendant’s motion for summary judgment is almost fully briefed and Plaintiff has 17 just moved to stay his case. (ECF Nos. 79, 87). Plaintiff has demonstrated an ability to articulate 18 his claims sufficiently enough to get him to the summary judgment stage. In the event he passes 19 that stage, it is likely that, like the plaintiff in Kern who needed counsel to take his case to trial, 20 Plaintiff will need similar help. But given that the motion for summary judgment is currently 21 pending, Plaintiff has already filed his response, and Plaintiff has just sought a stay, granting him 22 counsel at this stage would be premature. The Court thus denies Plaintiff’s motions without 23 prejudice, giving him leave to re-file his motion for counsel later. 24 B. The Court denies Plaintiff’s motion to compel LVMPD to produce unedited video. 25 26 The Court liberally construes Plaintiff’s motion as a motion to compel. If a party resists 27 discovery, the requesting party may file a motion to compel. See Fed. R. Civ. P. 37(a)(1), 1 production ... if ... (iii) a party fails to answer an interrogatory submitted under Rule 33; or (iv) a 2 party fails to produce documents ... as requested under Rule 34.”). However, here, the Court 3 cannot find that Defendants are resisting discovery. Plaintiff asserts that certain video time 4 stamps of the body worn camera footage he received do not match the date of the incident. (ECF 5 No. 71). He also asserts that the videos were produced in clips, rather than the full versions. 6 (Id.). Defendants assert that they produced sixty-eight body worn camera videos, none of which 7 were tampered with or edited. (ECF No. 75). Defendants filed only one of these videos—the 8 body worn camera footage of Officer Schotthoefer—with the Court. (ECF No. 77). However, 9 that video appears to be complete and unedited. 10 Based on the briefing before it, the Court cannot grant Plaintiff’s motion to compel. 11 Plaintiff and Defendants have completely different views about what Defendants produced to 12 Plaintiff. And the Court has only received one of these videos. Without more, the Court cannot 13 conclude that Defendants have edited the videos they produced to Plaintiff. The Court thus 14 denies Plaintiff’s motion to compel without prejudice. 15 16 IT IS THEREFORE ORDERED that Plaintiff’s motions to appoint counsel (ECF Nos. 17 70, 78) are denied without prejudice. 18 IT IS FURTHER ORDERED that Plaintiff’s motion to compel (ECF No. 71) is denied 19 without prejudice. 20 21 DATED: November 8, 2022 22 DANIEL J. ALBREGTS 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 27