Michael Aguilar v. Ryan Thornell, et al.

Opinion

1 WO 2 3 4 5

9 Michael Aguilar, No. CV-23-00264-TUC-RCC

10 Plaintiff, ORDER

11 v.

12 Ryan Thornell, et al.,

13 Respondents. 14 15 Pending before the Court are pro se Plaintiff Michael Aguilar's Motion to Extend 16 Time for Seeking Leave to Move to Join Additional Parties or to Amend Pleadings (Doc. 17 61), Motion for Order Compelling Discovery (Doc. 62), Motion for Sanctions in 18 Deterring Future Misconduct and the Denial of Disclosure and Discovery by Opposing 19 Counsel (Doc. 72), Motion for Sanctions from Inadequate Response to Interrogatories 20 (Doc. 73), Motion for Determination of Sufficiency of Defendant Perko's Response to 21 Plaintiff's Request for Admissions (Doc. 74), and Motion for Appointment of Pro Bono 22 Counsel to Assist with the Limited-Purpose of Discovery (Doc. 85). Also pending is 23 Defendant Stephen Perko's Motion to Amend or Correct Answer to Amended Complaint. 24 (Doc. 63.) The Court will address each motion in turn. 25 I. Plaintiff's Motion to Extend Time for Seeking Leave to Move to Join 26 Additional Parties or to Amend Pleadings On May 17, 2024, Plaintiff filed a motion asking the Court to modify its 27 Scheduling Order (Doc. 42) to permit Plaintiff to join additional parties or amend his 28 1 First Amended Complaint after he receives Defendant's response to his interrogatories. 2 (Doc. 61 at 1.) Defendant filed his Response on May 28, 2024 (Doc. 70), and Plaintiff 3 filed his Reply on June 10, 2024 (Doc. 78). Defendant objects to the extension because, 4 he argues, Plaintiff lacks good cause. (Doc. 70 at 1.) Defendant emphasizes that Plaintiff 5 filed his First Amended Complaint on July 14, 2023, was personally present for the 6 incident described in Count III, and identified all individuals who were involved by name 7 in his First Amended Complaint although he only named Defendant Perko as a party. (Id. 8 at 1–2.) 9 The Court set the deadline to amend or join parties for May 20, 2024. (Doc. 42 at 10 1.) It advised the parties that it would not otherwise entertain such motions unless a party 11 shows good cause. (Id. (citing Fed. R. Civ. P. 16(b)(4)).) Federal Rule of Civil Procedure 12 15 explains that "a party many amend its pleading only with the opposing party's written 13 consent or the court's leave" if the time for amended has expired (i.e., 21 days after 14 serving the pleading). Fed. R. Civ. P. 15(a)(2). "The court should freely give leave when 15 justice so requires." Id. Furthermore, the Court may modify its Scheduling Order "only 16 for good cause . . . ." Fed. R. Civ. P. 16(b)(4). 17 Plaintiff has not made a showing of good cause to seek to extend the deadline to 18 amend the First Amended Complaint or join additional parties. He has not alleged that 19 anything in the interrogatories would reveal additional parties, nor has he alleged that he 20 lacks necessary knowledge to have amended or added parties in the more than ten months 21 since he filed his First Amended Complaint. It appears he mainly seeks to have certain 22 witnesses, namely Nurse June and Officer Escalera, deposed to obtain further evidence 23 for his claim of excessive force in Count III. (See Doc. 78 at 5–6.) Accordingly, the Court 24 will deny Plaintiff's Motion to Extend Time for Seeking Leave to Move to Join 25 Additional Parties or to Amend Pleadings. 26 II. Plaintiff's Motion for Order Compelling Discovery 27 Also on May 17, 2024, Plaintiff filed a Motion for Order Compelling Discovery. 28 (Doc. 62.) Defendant responded on May 28, 2024 (Doc. 69) and Plaintiff replied on June 1 10, 2024 (Doc. 79). Plaintiff asserts that Defendant did not timely respond to Plaintiff's 2 first set of interrogatories and asks the Court to compel a response under Federal Rule of 3 Civil Procedure 37. (Doc. 62 at 7.) Defendant objects to the Motion because he argues it 4 was premature. (Doc. 69 at 1.) He highlights that Plaintiff filed the Motion to Compel on 5 May 17, 2024 even though Defendant's responses to his interrogatories were not due until 6 May 20, 2024. (Id.) Moreover, Defendant timely responded to the discovery request on 7 May 20, 2024. (Doc. 64.) 8 The Court will deny Plaintiff's Motion to Compel as moot. Defendant timely 9 served discovery in response to Plaintiff's interrogatories. (Doc. 64.) Furthermore, the 10 Court emphasizes that Federal Rule of Civil Procedure 37 requires a party to confer, or 11 attempt to confer, in good faith with the party that failed to make the disclosure or 12 discovery prior to moving for an order compelling discovery. Fed. R. Civ. P. 37(a)(1). 13 III. Plaintiff's Motion for Sanctions in Deterring Future Misconduct and the 14 Denial of Disclosure and Discovery by Opposing Counsel

15 On May 28, 2024, Plaintiff moved for the Court to impose sanctions on Defendant 16 for his alleged "fail[ure] to serve answers to interrogatories and . . . fail[ure] to participate 17 in good-faith in developing discovery." (Doc. 72 at 1.) Defendant responded on June 11, 18 2024 (Doc. 77) and Plaintiff replied on June 24, 2024 (Doc. 84). 19 Plaintiff alleges that Defendant failed to respond to his interrogatories within thirty 20 days. (Doc. 72 at 3.) After conferring in good faith with the party that allegedly failed to 21 answer interrogatories, a party may file a motion for sanctions. Fed. R. Civ. P. 37(d)(1). 22 However, here, Plaintiff does not appear to have made any good faith attempt to confer 23 and resolve the dispute with Defendant. More importantly, the Court explained in the 24 previous section that Defendant timely served answers to the interrogatories on May 20, 25 2024. Accordingly, Plaintiff's Motion for Sanctions regarding the alleged failure to serve 26 answers to his interrogatories is not warranted and will be denied. 27 /// 28 /// 1 IV. Plaintiff's Motion for Sanctions from Inadequate Response to Interrogatories 2

3 On June 3, 2024, Plaintiff moved for sanctions because, he argues, Defendant 4 inadequately responded to his interrogatories. (Doc. 73.) Defendant responded on June 5 17, 2024 (Doc. 81) and Plaintiff replied on July 8, 2024 (Doc. 87). 6 Plaintiff asserts that Defendant objected to seven of the nine interrogatories. (Doc. 7 73 at 2.) He argues that this equates to a complete failure to respond, warranting 8 sanctions under Federal Rule of Civil Procedure 37(d)(1). (Id. at 2–3.) Defendant 9 responds that Plaintiff cannot seek sanctions because he did not make any attempt to 10 confer with Defendant or resolve the dispute prior to filing his motion. (Doc. 81 at 1.) 11 Furthermore, Defendant argues that Rule 37(d)(1)(ii) only provides for sanctions if the 12 party "fails to serve its answers, objections, or written response." (Id. at 2 (quoting Fed. 13 R. Civ. P. 37(d)(1)(ii)).) Because Defendant filed answers and objections, he asserts that 14 sanctions are not warranted. (Id.) The Court will deny Plaintiff's Motion for Sanctions regarding Defendant's alleged 15 failure to adequately answer interrogatories. First, Plaintiff did not show that he 16 attempted to confer in good faith with Defendant to resolve this dispute before he moved 17 for sanctions. Fed. R. Civ. P. 37(d)(1)(B). Second, simply objecting to an interrogatory is 18 not a complete failure to respond. A responding party has the option to answer the 19 interrogatory or provide a specific objection in lieu of an answer. Fed. R. Civ. P. 20 33(b)(3)–(4). The Court does not have before it Defendant's response or objections to 21 individually consider. If, after conferring with Defendant and attempting to resolve this 22 issue without the Court's intervention, Plaintiff still seeks the Court's ruling on the 23 validity of Defendant's objections, he may file a discovery dispute motion. LRCiv 7.2(j). 24 The Court outlined this procedure in its Scheduling Order. (Doc. 42 at 2.) If he chooses to 25 file a discovery motion, Plaintiff must explain with specificity the interrogatory, 26 Defendant's objection, and his objection to Defendant's response. See Fed. R. Civ. P. 27 33(b)(4). Having denied the motion, the Court will not address further Plaintiff's 28 arguments for awarding costs and fees under Rule 37(a)(5)(A). (See Doc. 73 at 7–10.) 1 V. Plaintiff's Motion for Determination of Sufficiency of Defendant Perko's Response to Plaintiff's Request for Admissions 2

3 On June 5, 2024, Plaintiff filed a motion asking the Court to determine whether 4 Defendant's response to his request for admissions was sufficient under Federal Rule of 5 Civil Procedure 36. (Doc. 74.) Defendant filed his response (Doc. 82) and Plaintiff 6 replied (Doc. 86). 7 Plaintiff avers that he served fifteen requests for admission on Defendant, and 8 Defendant objected to twelve, denied two, and admitted to one. (Doc. 74 at 2.) The only 9 specific request for admission and objection that Plaintiff includes for the Court is 10 Request for Admission No. 1. (Id. at 12.) It read, "Admit the initial information you 11 received from PCACD POD IG Officer Escalera on June 2, 2022, in incident No. 12 220603002, was Michael Aguilar had stated as nonessential the medical examination for 13 chest pains Mr. Aguilar had discussed with Officer Escalera." (Id.) He further states that 14 Defendant responded, "Objection, relevance vague as to time and substance, ambiguous, and calls for speculation. Without waiving these or any other objections, Defendant is 15 unable to admit or deny because he had no conversations with CO Escalera on June 2, 16 2022." (Id. at 12–13.) Plaintiff argues that Defendant cannot refuse to admit or deny this 17 fact because the information was reasonably available to Defendant and because 18 Defendant is selectively choosing to have a bad memory. (Id. at 13.) 19 In his Response, Defendant argues (1) Plaintiff did not follow LRCiv 7.2(j) by not 20 conferring with Defendant prior to filing a motion regarding a discovery dispute, and (2) 21 Rule 36 does not authorize a court to determine the veracity of a response to a request for 22 admission. (Doc. 82 at 1–3.) Defendant avers that he answered truthfully and argues that 23 Plaintiff cannot involve the Court because he "either does not like or believe Perko's 24 responses." (Id. at 2.) He quotes Ranger Ins. Co. v. Culberson, 49 F.R.D. 181, 182–83 25 (N.D. Ga. 1969), saying that "Rule 36 was not designed to discover facts; it was designed 26 to circumscribe contested factual issues in a case, whether crucial or not, so that issues 27 which were disputed might be clearly and succinctly presented to the trier of facts." (Id. 28 at 3.) Defendant argues that this is not a discovery dispute but rather evidence of the fact 1 that the parties have two different versions of the facts that should be resolved at trial. 2 (Id.) 3 The Court will deny Plaintiff's motion without prejudice because he did not 4 comply with the Court's Scheduling Order (Doc. 42) or the Local Rules. As the Court 5 previously explained, LRCiv 7.2(j) requires Plaintiff to make a good faith effort to confer 6 with Defendant and resolve discovery disputes before filing a discovery motion with the 7 Court. (Id. at 2.) If, after conferring in good faith, Plaintiff wishes to file a discovery 8 motion specifically outlining each request for admission and objection he takes issue 9 with, he may do so. 10 Plaintiff also argues in his Reply that a grant of default judgment is warranted 11 because, he asserts, Defendant has committed misconduct by not complying with 12 discovery requirements. (Doc. 86 at 1,5.) He argues for default judgment as a sanction. 13 (Id. at 5–6.) The Court will not assess this issue because it was raised for the first time in 14 a reply. Fed. R. Civ. P. 55(b)(2) ("In all other cases, the party must apply to the court for a default judgment.") Issues raised in a reply do not afford the opposing party the 15 opportunity to respond. Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007). If Plaintiff 16 wishes to make argument that the Court should grant default judgment under Federal 17 Rule of Civil Procedure 55, he may file a separate motion. 18 VI. Plaintiff's Motion for Appointment of Pro Bono Counsel to Assist with the 19 Limited Purpose of Discovery 20 On July 1, 2024, Plaintiff requested the Court appoint counsel. (Doc. 85.) 21 Defendant did not respond. Plaintiff argues that the Court should appoint counsel to assist 22 him in discovery because Defendant has failed to properly conduct discovery. (Id. at 10.) 23 He further argues, "[t]he Court must recognize Plaintiff does, in fact, have his work cut 24 out for him and finds himself within an exceptionally daunting set of circumstances 25 requiring the appointment of counsel for the purpose of uncovering what was done to Mr. 26 Aguilar on June 2, 2022." (Id. at 13.) 27 The Court has previously considered Plaintiff's requests to appoint counsel and 28 denied them because Plaintiff has not demonstrated that exceptional circumstances exist. 1 (Docs. 41, 48.) The second of these motions similarly requested counsel for the limited 2 purpose of discovery. (Doc. 47.) As the Court noted in denying that motion, 3 Plaintiff does not present exceptional circumstances for the appointment of counsel, even 4 for the limited purpose to assist with discovery . . . . 5 The Court understands Plaintiff's concerns and acknowledges that every unrepresented party could 6 benefit in some way from the appointment of 7 counsel, in particular those who are incarcerated and have limited access to resources. But whether 8 one could benefit from the assistance is, 9 unfortunately, not the standard. The Court simply does not have the resources to appoint counsel in 10 every case of an unrepresented prisoner litigating a 11 civil rights claim against a corrections officer where the litigant wants experienced assistance to 12 carry out effective depositions and investigations. 13 (Doc. 48 at 2–3.) The Court's assessment applies equally here, as Plaintiff has not 14 presented any new evidence of exceptional circumstances. He argues that Defendant has 15 failed to properly conduct discovery, but, as the Court addresses throughout this Order, 16 there is not sufficient evidence at this time that (1) Defendant has not complied with his 17 discovery obligations, and (2) that the discovery issues are so complex that Plaintiff is 18 unable to articulate his objections. As the Court stated previously, "The Federal Rules of 19 Civil Procedure set forth the procedures for discovery in a civil case and Plaintiff, 20 through his previous motions, has demonstrated an ability to understand legal rules and 21 clearly articulate his arguments." (Id. at 3.) Indeed, the Court in this Order has addressed 22 several motions from Plaintiff arising from the Federal Rules governing discovery. 23 Accordingly, the Court will deny Plaintiff's motion for counsel without prejudice. 24 VII. Defendant's Motion to Amend or Correct Answer to Amended Complaint 25 On May 20, 2024, Defendant moved to amend his Answer. (Doc. 63.) Plaintiff did 26 not file a response. However, he filed a Motion to Strike Defendant Stephen Perko's 27 Amended Answer (Doc. 71), which, before the Court could rule, Plaintiff voluntary 28 withdrew (Doc. 83). Plaintiff originally moved to strike because he had not yet received a 1 copy of the Amended Answer due to a delay in processing mail at the jail. (Doc. 71 at 2.) 2 He also argued that Defendant should not be allowed to amend his answer without having 3 complied with the discovery requirements and then reiterated much of his arguments 4 from other motions regarding discovery and sanctions. (See id. at 3–5.) However, on June 5 24, 2024, Plaintiff withdrew his Motion to Strike after having received the proposed 6 Amended Answer, and he does not appear to otherwise object to the proposed 7 amendments. (Doc. 83.) 8 Defendant seeks to amend the Answer because it was filed by previous counsel 9 and current counsel believes it requires more specificity and affirmative defenses. (Doc. 10 63 at 1–2.) Defendant filed his Answer on March 14, 2024. (Doc. 39.) On April 22, 2022, 11 he filed a Notice of Attorney Substitution who, within a month, sought to amend the 12 Answer. (Docs. 53, 63.) 13 Federal Rule of Civil Procedure 15(a)(2) allows a party to seek the court's leave to 14 amend a pleading. Fed. R. Civ. P. 15(a)(2). "The court should freely give leave when justice so requires." Id. "[T]his policy is to be applied with extreme liberality." Morongo 15 Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). However, the 16 party must nonetheless satisfy Federal Rule of Civil Procedure 16(b)'s "good cause" 17 standard. Fed. R. Civ. P. 16(b)(4). Where there is good cause, the Court should also 18 consider if there is any "bad faith, undue delay, prejudice to the opposing party, futility of 19 amendment, and whether the party has previously amended his pleadings." Johnson v. 20 Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004) (citation omitted). 21 The Court has reviewed the lodged Amended Answer. (Doc. 63-2.) The biggest 22 amendment is the inclusion of affirmative defenses where none were raised in the 23 Answer. (Id.) The Court finds that Defendant has demonstrated good cause, that he acted 24 in good faith, and that there was no undue delay by explaining that new counsel took over 25 shortly after the Answer was filed and moved to file an Amended Answer quickly once 26 counsel identified affirmative defenses. Defendant did not seek to amend previously, and 27 amendment would not be futile as it is important for Plaintiff that Defendant notice any 28 affirmative defenses he may raise. Finally, there is no prejudice to Plaintiff if the Court 1 permits the proposed Amended Answer. Plaintiff does not object to the Amended Answer 2 and, because no dispositive motions have yet been filed, the Amended Answer will not 3 delay the procedure of Plaintiff's case. See Owens v. Kaiser Found. Health Plan, Inc., 4 244 F.3d 708, 712 (9th Cir. 2001) (finding district court did not clearly err in allowing 5 defendant to amend answer to include affirmative defense where defendant offered 6 "substantial competent evidence to explain the delay" after new counsel was substituted 7 shortly after the answer was filed and amendment would cause no delay to the 8 proceedings). Accordingly, the Court will grant Defendant's Motion to Amend. 9 VIII. Conclusion 10 For the foregoing reasons, IT IS ORDERED: 11 (1) Plaintiff's Motion to Extend Time for Seeking Leave to Move to Join 12 Additional Parties or to Amend Pleadings is DENIED. (Doc. 61.) 13 (2) Plaintiff's Motion for Order Compelling Discovery is DENIED AS MOOT. 14 (Doc. 62.) (3) Plaintiff's Motion for Sanctions in Deterring Future Misconduct and the Denial 15 of Disclosure and Discovery by Opposing Counsel is DENIED. (Doc. 72.) 16 (4) Plaintiff's Motion for Sanctions from Inadequate Response to Interrogatories is 17 DENIED. (Doc. 73.) 18 (5) Plaintiff's Motion for Determination of Sufficiency of Defendant Perko's 19 Response to Plaintiff's Request for Admissions is DENIED WITHOUT 20 PREJUDICE. (Doc. 74.) 21 (6) Plaintiff's Motion for Appointment of Pro Bono Counsel to Assist with the 22 Limited-Purpose of Discovery is DENIED WITHOUT PREJUDICE. (Doc. 23 85.) 24 /// 25 /// 26 /// 27 /// 28 1 (7) Defendant's Motion to Amend or Correct Answer to Amended Complaint is 2 GRANTED. (Doc. 63.) The Clerk of Court shall file the document lodged at 3 Doc. 63-2 on the docket. 4 Dated this 22nd day of July, 2024. 5 6

8 □ Uf Cyl,— Honorable Raner ©. Collins 9 merior United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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