1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM ALLEN GARRETT, No. 2:16-cv-1336 KJM AC P 12 Plaintiff, 13 v. ORDER 14 JEFF MACOMBER, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. 18 § 1983, has filed a motion to compel discovery (ECF No. 63), which defendants oppose (ECF No. 19 68). He has also filed motions for a settlement conference (ECF No. 66), a pretrial conference 20 (ECF No. 67), separate trials (ECF No. 69), reconsideration (ECF No. 71), for discovery (ECF 21 No. 73), and for appointment of counsel (ECF Nos. 86, 96).1 Defendants have filed a motion for 22 summary judgment. ECF No. 93. 23 I. Plaintiff’s Allegations 24 The complaint alleges that defendants Baker and Masterson violated plaintiff’s rights 25 under the Fourteenth Amendment. ECF No. 1 at 4. Specifically, plaintiff alleges that defendant 26 Baker denied him due process when he refused to call plaintiff’s psychiatric doctor during the 27 1 Plaintiff’s eight motions for preliminary injunction (ECF Nos. 76, 79, 81, 82, 84, 85, 88, 90) 28 will be addressed by separately filed findings and recommendations. 1 hearing on his rules violation, and that Baker intentionally gives out disparate punishment to 2 prisoners who suffer from mental illness. Id. Defendant Masterson also allegedly discriminated 3 against plaintiff when he removed plaintiff from his yard crew assignment because of his mental 4 illness and wrote him up for the rules violation that resulted in the loss of his job. Id. at 4, 32-33. 5 II. Motion to Compel 6 Plaintiff has filed a motion to compel further responses to his interrogatories and requests 7 for production in which he argues that defendants’ responses are evasive and elusive, and that 8 their objections are unfounded.2 ECF No. 63. Defendants oppose the motion on the grounds that 9 plaintiff has not complied with Federal Rule of Civil Procedure 37(a), he has failed to properly 10 support his objections to their responses, and their responses were adequate and their objections 11 proper. ECF No. 68. 12 A. Standards Governing Discovery 13 The scope of discovery under Federal Rule of Civil Procedure 26(b)(1) is broad. 14 Discovery may be obtained as to “any nonprivileged matter that is relevant to any party’s claim or 15 defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). “Information within 16 this scope of discovery need not be admissible in evidence to be discoverable.” Id. The court, 17 however, may limit discovery if it is “unreasonably cumulative or duplicative, or can be obtained 18 from some other source that is more convenient, less burdensome, or less expensive;” or if the 19 party who seeks discovery “has had ample opportunity to obtain the information by discovery;” 20 or if “the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 21 26(b)(2)(C). The purpose of discovery is to “make a trial less a game of blind man’s bluff and 22 more a fair contest with the basic issues and facts disclosed to the fullest practicable extent,” 23 United States v. Procter & Gamble Co., 356 U.S. 677, 682 (1958) (citation omitted), and “to 24 narrow and clarify the basic issues between the parties,” Hickman v. Taylor, 329 U.S. 495, 501 25 (1947). 26 //// 27 2 Plaintiff has also filed two duplicate copies of his motion to compel (ECF Nos. 64, 72) which 28 the Clerk of the Court will be directed to strike from the record. 1 Under Federal Rule of Civil Procedure 37(a)(3)(B), a motion to compel may be made if “a 2 party fails to answer an interrogatory submitted under Rule 33; or a party fails to produce 3 documents or fails to respond that inspection will be permitted . . . as requested under Rule 34.” 4 The party seeking to compel discovery has the burden of showing that the discovery sought is 5 relevant or that its denial will cause substantial prejudice. Aros v. Fansler, 548 F. App’x 500, 501 6 (9th Cir. 2013) (citing Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002)). The opposing party 7 is “required to carry a heavy burden of showing why discovery was denied.” Blankenship v. 8 Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975). 9 B. Compliance with Rule 37 10 Defendants argue that the motion to compel should be denied because while the meet and 11 confer requirements of Local Rule 251 have been waived, the requirement to confer under 12 Federal Rule of Civil Procedure 37(a) has not. ECF No. 68 at 2-3. While it is true that the 13 requirement outlined in Rule 37(a) has not been explicitly excused, and the court encourages 14 parties to attempt to resolve disputes prior to seeking court intervention, because of plaintiff’s 15 status as a pro se prisoner, it will not be enforced here and will not provide grounds for denying 16 the motion. 17 C. Requests for Production 18 Plaintiff seeks to compel further responses to two requests for production, as addressed 19 below. 20 Request for Production 1: The names and addresses of all witnesses to the extent known by you, including, but not limited to, 21 those intended to be called to testify at the hearing. 22 Response: Defendants object to this request on the grounds that it calls for creation of a document that is not in the possession, 23 custody, or control of Defendants. Based upon this objection, Defendants cannot respond to this request. 24 25 ECF No. 63 at 20-21. 26 Plaintiff requests that defendants produce a list of witnesses and their addresses, which 27 defendants claim requires such a document to be created. While defendants’ objections to the 28 request for production are valid, in light of plaintiff’s status as a pro se inmate, the court will 1 liberally construe the request for production as an interrogatory seeking the names and addresses 2 of all witnesses defendants intend to call at trial and defendants will be required to provide a 3 supplemental response. 4 Request for Production 2: An opportunity to inspect and copy all of the following matter under Government code section 11507(a)- 5 (F) that are in your possession, custody, or control: 6 (A) All reprimands, complaint and grievances filed against correctional officer Masterson, and Luietenant [sic] Baker of 7 excessive punishment, discrimination and all other complaints 8 . . . 9 (F) Investigative reports made by or on behalf of the Department of Correction or other party pertaining to the subject matter of the 10 proceedings to the extent that these report; 11 (G) Any other writing or thing that is relevant and would be admissible in evidence; 12 (1) Reflect matters perceived by the investigator in the 13 course of his or her investigation, or 14 . . . 15 Response: Defendants object to this request on the grounds that it is compound and assumes a legal conclusion. 16 Defendants object to part (a) of this request on the grounds that it 17 assumes facts not in evidence and purports to compel Defendants to conduct an investigation on Plaintiff’s behalf. Defendants further 18 object to part (a) of this request on the grounds that it is not relevant to the claims or defenses in this lawsuit, unduly burdensome, overly 19 broad, vague, ambiguous as to the phrase “of excessive punishment, discrimination and all other complaints.” Defendants further object 20 to part (a) of this request on the grounds that it seeks confidential information regarding complaints by other inmates. See Cal. Code 21 Regs. tit 15, § 3321. Defendants object to the extent that portions of the request seek personnel-related information or files that are 22 deemed to be official information and subject to the privilege for such information. See Sanchez v. City of Santa Ana, 936 F.2d 23 1027, 1033 (9th Cir. 1991). See Defendant’s privilege log served concurrently with this response. Defendants further object because 24 the discovery of employment records is restricted by California statutes, including Penal Code Sections 832.7 and 832.8, 25 Government Code Section 6254, and Civil Code sections 1798.24 and 1798.40, as well as Section 3400 of Title 15 of the California 26 Code of Regulations. Without waiving these objections, all administrative appeals filed by Plaintiff against either Defendant 27 that are in Defendants’ possession, custody, and control are contained within Attachment A. Additional responsive documents 28 are referred to in the attached Privilege Log. 1 . . . 2 Defendants object to part (f) of this request on the grounds that it is overly broad, vague, and ambiguous as to the phrases “investigative 3 reports made by or on behalf of the Department of Correction” and “other party.” Defendants further object to part (f) of this request 4 on the grounds that it requests confidential information the disclosure of which would create a hazard to the safety and security 5 of the institution, and is unintelligible. Without waiving these objections, and assuming part (f) of this request is seeking all 6 documents that contain any writings produced from a California Department of Corrections and Rehabilitation-led investigation into 7 the December 17, 2015 rules violation report hearing, after a reasonable and diligent search, Defendants have no responsive 8 documents in their possession, custody, or control. 9 Defendants object to part (g) of this request on the grounds that it assumes facts not in evidence, and requests confidential information 10 the disclosure of which would create a hazard to the safety and security of the institution. Defendants further object to part (g) of 11 this request on the grounds that it is unduly burdensome, overly broad, vague, and ambiguous as to the phrase “any other writing or 12 thing that is relevant and would be admissible in evidence,” unintelligible, and compound. Without waiving these objections, 13 and assuming part (g) of this request is seeking all relevant and admissible documents that contain any writings concerning matters 14 perceived by an investigator serving on behalf of the California Department of Corrections and Rehabilitation or containing or 15 attaching non-privileged documents otherwise responsive to this request, after a reasonable and diligent search, Defendants have no 16 responsive documents in their possession, custody, or control. 17 ECF No. 63 at 21-24. 18 Request for Production 2 contains several subparts, and it appears that plaintiff objects 19 only to the responses to subparts A, F, and G(1). Id. at 2-4; ECF No. 74 at 3-4. 20 Subpart A seeks reprimands, complaints, and grievances filed against defendants related 21 to “excessive punishment, discrimination and all other complaints.” Id. at 21. 22 In response to the request, defendants object in part based on relevancy and the official 23 information privilege and refer plaintiff to their concurrently served privilege log. Id. at 22. 24 Plaintiff argues that the log does not provide any information, that the documents requested are 25 relevant, and that security concerns can be addressed by redacting the names of other inmates. Id. 26 at 2-3; ECF No. 74 at 3. In responding to the motion to compel, defendants argue that they 27 provided some documents in response to the request and that their privilege log is sufficient. ECF 28 No. 68 at 4-5. They also note that “[t]o the extent Plaintiff is specifically searching for 1 documents concerning adverse action taken by CDCR against Defendants for any misconduct, 2 after a reasonable and diligent search, Defendants did not have responsive documents in their 3 possession, custody, or control.” Id. at 5 n.4. 4 As an initial matter, the court finds that since the complaint is about defendants’ alleged 5 discrimination against plaintiff because of his mental health condition and Baker’s denial of a 6 witness during a disciplinary hearing, defendants’ objection to the request as overbroad is well 7 taken and the request is properly limited to reprimands, complaints, and grievances against either 8 defendants for discriminating against inmates based on their mental health and against Baker for 9 refusing witnesses during a disciplinary hearing. Furthermore, defendants will be required to 10 clarify whether the absence of documents concerning adverse action taken against them by the 11 CDCR is because no such documents exist or because the documents exist but are not in 12 defendants’ possession, custody, or control. Their response shall be limited to adverse actions 13 against either of them arising out of discrimination against inmates based on their mental health 14 condition and against Baker for denying witnesses during disciplinary hearings. If such 15 documents exist but are not in defendants’ possession, custody, or control, defendants shall also 16 identify the appropriate custodian of records so that plaintiff may subpoena the records if he 17 wishes. 18 With respect to the claim of privilege, “[f]ederal common law recognizes a qualified 19 privilege for official information. Government personnel files are considered official 20 information. To determine whether the information sought is privileged, courts must weigh the 21 potential benefits of disclosure against the potential disadvantages. If the latter is greater, the 22 privilege bars discovery.” Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033-34 (9th Cir. 1990) 23 (citations omitted). “The balancing approach of the Ninth Circuit is mirrored in this and other 24 courts’ previous determinations that a balancing test is appropriate when the disclosure of law 25 enforcement files in a civil action is at issue.” Doubleday v. Ruh, 149 F.R.D. 601, 609 (E.D. Cal. 26 1993). Documents that are a part of the personnel records of officers defending civil rights 27 actions, while containing sensitive information, are within the scope of discovery. Soto v. City of 28 //// 1 Concord, 162 F.R.D. 603, 614-15 (N.D. Cal. 1995) (citing Hampton v. City of San Diego, 147 2 F.R.D. 227, 229 (S.D. Cal. 1993)). 3 A party claiming that information is privileged must “describe the nature of the 4 documents, communications, or tangible things not produced or disclosed—and do so in a manner 5 that, without revealing information itself privileged or protected, will enable other parties to 6 assess the claim.” Fed. R. Civ. P. 26(b)(5)(A)(ii). In addition to a privilege log, a party seeking 7 to invoke the official information privilege and prevent disclosure must submit an affidavit from 8 an official of the agency in control of the materials sought addressing the following concerns: 9 “(1) an affirmation that the agency generated or collected the material in issue and has maintained its confidentiality; (2) a 10 statement that the official has personally reviewed the material in question; (3) a specific identification of the governmental or 11 privacy interests that would be threatened by disclosure of the material to plaintiff and/or his lawyer; (4) a description of how 12 disclosure subject to a carefully crafted protective order would create a substantial risk of harm to significant governmental or 13 privacy interests, and (5) a projection of how much harm would be done to the threatened interests if disclosure were made.” 14 15 Soto, 162 F.R.D. at 613 (quoting Kelly v. City of San Jose, 114 F.R.D. 653, 670 (N.D. Cal. 16 1987)). 17 Defendants’ privilege log and attached declaration are insufficient to support their claim 18 of official information privilege. ECF No. 63 at 16-19. There is no indication as to the nature of 19 the other inmate appeals, other than that they are against defendants, nor is there any indication as 20 to the number or appeals or the timeframe they cover, as under date, author, and recipient 21 defendants have simply stated “Various.” Id. As a result, the court is unable to tell how many 22 complaints exist or if any of them are claims for discrimination based on mental health status or 23 denial of a witness at a disciplinary hearing. Furthermore, it is unclear from the attached 24 declaration whether the declarant actually reviewed any of the complaints, and factors three 25 through five are addressed in only a general and conclusory fashion. Id. at 16-18. This is not 26 sufficient to support a claim of official information privilege, and the general nature of the 27 declaration is insufficient to convince the court that redaction would not sufficiently address 28 privacy and security concerns in this instance. Therefore, plaintiff’s motion to compel will be 1 granted to the extent defendants will be required to produce redacted copies of any inmate appeals 2 by other inmates claiming that either defendant discriminated against them based on their mental 3 health status or that Baker violated due process by denying a witness at a disciplinary hearing. 4 Defendants may redact identifying information of other inmates, which the court recognizes may 5 extend beyond the names and CDCR numbers of those inmates. 6 Subpart F appears to seek investigative reports related to the rules violation and 7 disciplinary hearing that form the basis of the instant action, while subpart G(1) appears to be a 8 general request for any additional “relevant” and “admissible” writings by investigators. To the 9 extent subpart G(1) is seeking documents from investigations other than the investigation 10 referenced in subpart F, the request is overly broad and vague as to what material plaintiff may be 11 seeking. However, to the extent subparts F and G(1) seek investigative documents related to the 12 rules violation and disciplinary hearing underlying this action, defendants will be required to 13 supplement their responses as outlined below. 14 In response to subpart F, defendants respond that to the extent the “request is seeking all 15 documents that contain any writings produced from a California Department of Corrections and 16 Rehabilitation-led investigation into the December 17, 2015 rules violation report hearing, after a 17 reasonable and diligent search, Defendants have no responsive documents in their possession, 18 custody, or control.” ECF No. 63 at 23-24. They provide a similar response to subpart G(1) as it 19 relates to” all relevant and admissible documents that contain any writings concerning matters 20 perceived by an investigator serving on behalf of the California Department of Corrections and 21 Rehabilitation or containing or attaching non-privileged documents otherwise responsive to this 22 request.” Id. at 24. It is unclear from the responses whether defendants do not have possession, 23 custody, or control of responsive documents because such documents do not exist (e.g., because 24 an investigation was never conducted or any documents that may have existed were destroyed), or 25 whether the documents do exist but are outside defendants’ possession, custody, or control. 26 Accordingly, defendants will be required to clarify their responses. If such documents exist but 27 are not in defendants’ possession, custody, or control, defendants shall also identify the 28 appropriate custodian of records so that plaintiff may subpoena the records if he wishes. 1 D. Interrogatories 2 The Court does not hold prisoners proceeding pro se to the same standards that it holds attorneys. However, at a minimum, as the 3 moving party plaintiff bears the burden of informing the court of which discovery requests are the subject of his motion to compel 4 and, for each disputed response, why defendant’s objection is not justified. 5 6 Waterbury v. Scribner, No. 1:05-cv-0764 OWW DLB PC, 2008 WL 2018432, at *1, 2008 U.S. 7 Dist. LEXIS 53142, at *3 (E.D. Cal. May 8, 2008). Accordingly, though plaintiff makes a 8 number of general objections to defendants’ discovery responses, the court will address only the 9 interrogatories specifically identified by plaintiff in his motion. 10 Interrogatory 13 (Masterson): Correctional Officer Masterson, what is if any training you received for documenting a prisoner 11 whom is exhibiting ‘Bizarre’ behavior. 12 Response: Defendant objects to the first part of this interrogatory on the grounds that it is unintelligible, compound, and not relevant 13 to the claims or defenses in this lawsuit. Defendant further objects to the first part of this interrogatory on the grounds that it is overly 14 broad, vague, and ambiguous as to the phrases “what is if any training” and “bizarre behavior.” Without waiving these 15 objections, and assuming the first part of the interrogatory is asking Defendant Masterson to provide a general description of the 16 training that he received concerning unusual inmate behavior, Defendant responds as follows: Custodial staff receive general 17 training, on an annual basis, covering a broad range of topics, including, but not limited to, employing progressive discipline, 18 providing constant verbal counseling, and, if necessary, escalating to a rules violation report. Additionally, custodial staff complete 19 On-the-Job Training computer modules, on an ongoing basis throughout the rest of the year, which supplement the annual 20 training. 21 ECF No. 63 at 34. 22 Plaintiff argues that Masterson failed to answer Interrogatory 13 and inappropriately 23 objected that the requested information was not relevant. Id. at 7-8. Masterson asserts that, 24 despite his objections, he did in fact respond to the interrogatory with a summary of the type of 25 training he has received, and that plaintiff has not addressed how that response is deficient. ECF 26 No. 68 at 7. He futher notes that plaintiff’s claim that bizarre behavior equates to mental illness is 27 not self-evident. Id. at n.5. The court agrees that without context, bizarre behavior does not 28 necessarily translate to behavior caused by mental illness, but given the allegations in the 1 complaint, the term “bizarre behavior” clearly encompasses behavior resulting from mental 2 illness. However, as defendant points out, plaintiff merely complains about the objections and 3 has not identified any deficiencies with the actual answer provided. The motion to compel will 4 therefore be denied as to this interrogatory. 5 Interrogatory 13(1)(b) (Baker): Senior hearing officer in rule violation #SAC-FAB-16-06-0559 was mental health a factor? 6 Response: Defendant objects to the second part of this 7 interrogatory (1(b)) on the grounds that it is unintelligible, not relevant to the claims or defenses in this lawsuit, and vague and 8 ambiguous as to the phrase “a factor” and the identification number “SAC-FAB-16-06-0559.” Based on these objections, Defendant 9 cannot respond to the second part of this interrogatory. 10 ECF No. 63 at 48. 11 Plaintiff contests Baker’s response to Interrogatory 13(1)(b) on the ground that Baker was 12 the hearing officer and should therefore know whether mental health was a factor during the 13 hearing. Id. at 8. Baker responds that the interrogatory was difficult to decipher and that she was 14 unable to locate or recall adjudicating a rules violation bearing the number identified by plaintiff. 15 ECF No. 68 at 8. Baker further claims that based on Interrogatory 18, it appears that the violation 16 was based on a fight that occurred a year after the incident that is the subject of this lawsuit. Id. 17 Although the court does not find the interrogatory to be unintelligible, defendant’s 18 objections as to relevance will be sustained. The identification number provided differs from the 19 number assigned to the rules violation at issue (ECF No. 1 at 32), and as defendant points out, 20 Interrogatory 18 indicates that the identification number corresponds to an unrelated rules 21 violation (ECF No. 63 at 51). The motion will therefore be denied as to this interrogatory. 22 Interrogatory 14 (Masterson): C/O Masterson are you aware of The Department of Correction rule that state no inmate with a 23 mental disability be excluded from participation in or be denied benefits of service programs or activities or be subject to 24 Discrimination? (15 CCR Section 3085.) 25 Response: Defendant objects to this interrogatory on the grounds that it is vague and ambiguous as to the phrase “the Department of 26 Correction rule.” Defendant further objects to this interrogatory on the grounds that it assumes and calls for a legal conclusion. 27 Without waiving these objections, and assuming this interrogatory asks whether Defendant Masterson is aware of the California 28 Department of Corrections and Rehabilitation’s policies concerning 1 compliance with the American with Disabilities Act, Defendant responds as follows: Defendant Masterson is aware of Title 15 of 2 the California Code of Regulations, § 3085, which states as follows: “Departmental compliance with the Americans with Disabilities 3 Act (ADA) is currently under the supervision of federal courts as specified in Court Ordered Remedial Plans articulated in the 4 Armstrong v. Schwarzenegger (previously: Armstrong v. Davis) case. Accordingly, departmental ADA practices, including 5 offender ADA appeal rights are currently carried out in accordance with an Armstrong Remedial Plan (ARP) established by the court 6 of jurisdiction.” 7 ECF No. 63 at 50. 8 Plaintiff argues that Masterson has failed to provide a response to Interrogatory 14 and 9 instead cites to the California Code of Regulations. Id. at 8. Plaintiff’s objections to Masterson’s 10 response are without merit. Masterson clearly responded that he was aware of the regulation 11 plaintiff cites and then provides the language of the regulation. Plaintiff’s apparent dissatisfaction 12 that Masterson’s response does not endorse his interpretation of the regulation does not make 13 Masterson’s response inadequate. The motion will be denied as to Interrogatory 14. 14 Interrogatory 15 (Baker): Senior hearing officer Baker and c/o Masterson are you aware that “Deliberate indifference’ also can 15 occur to mental health Discipline and mental health care? (See e.g., (Coleman v. Wilson (E.D. Cal. 1995) 912 F. Supp, 1282, 2398- 16 1299 17 Response: Defendant objects to this interrogatory on the grounds that it is not relevant to the claims or defenses in this lawsuit, 18 vague, ambiguous as to the phrase “to mental health discipline and mental health care,” and unintelligible. Defendant further objects to 19 this interrogatory on the grounds that it assumes and calls for a legal conclusion. Based upon these objections, Defendant cannot 20 respond to this interrogatory. 21 ECF No. 63 at 35. 22 Plaintiff argues that defendant Baker’s response is elusive and unresponsive. Id. at 8. 23 Defendant responds that the objections are appropriate because the interrogatory seeks 24 confirmation of a legal conclusion not relevant to the issues before the court. ECF No. 68 at 8-9. 25 The court finds defendant’s objections are proper since the request seeks confirmation of a legal 26 conclusion and deliberate indifference is not an issue before the court in this case. The motion to 27 compel will therefore be denied as to this request. 28 //// 1 Interrogatory 16 (both defendants): Senior hearing officer Baker and c/o Masterson are you aware that ‘Deliberate indifference’ may 2 be shown when applying discipling and writing rules violation ignoring a prisoner mental health needs, criteria, assesment [sic] 3 and known pscosis [sic] behavior? 4 Response (both defendants): Defendant objects to this interrogatory on the grounds that it is not relevant to the claims or 5 defenses in this lawsuit, vague, ambiguous as to the phrase “ignoring a prisoner mental health needs assessment,” and 6 unintelligible. Defendant further objects to this interrogatory on the grounds that it assumes and calls for a legal conclusion. Based 7 upon these objections, Defendant cannot respond to this interrogatory. 8 9 ECF No. 63 at 35-36, 51. 10 Plaintiff asserts that both defendants’ responses were elusive and unresponsive (id. at 8-9), 11 while defendants respond that their objections were proper because the interrogatory seeks 12 confirmation of a legal conclusion not relevant to the issues before the court. ECF No. 68 at 9. 13 As with Interrogatory 15, the court finds the objections are proper because the request seeks 14 confirmation of a legal conclusion and deliberate indifference is not an issue before the court in 15 this case. The motion to compel will therefore be denied as to Interrogatory 16. 16 III. Motion for Settlement Conference 17 Plaintiff requests that the court schedule this case for a settlement conference (ECF No. 18 66) and defendants have opposed the request (ECF No. 70). This case was originally set for a 19 settlement conference as part of this court’s Post-Screening ADR Project (ECF No. 32), from 20 which defendants requested to opt out (ECF No. 44). That request was granted (ECF No. 45), 21 and in light of defendants’ opposition (ECF No. 70), the court will not require the parties to take 22 part in a settlement conference at this time. Plaintiff’s motion for a settlement conference will 23 therefore be denied. 24 IV. Motions for Pretrial Conference and Separate Trials 25 Plaintiff has filed motions requesting the court schedule a pretrial conference and set 26 separate trials for each defendant. ECF Nos. 67, 69. These motions will also be denied. The 27 scheduling order in this case specifically provided that a “[p]retrial conference and trial dates will 28 be set, as appropriate, following adjudication of any dispositive motion, or the expiration of time 1 for filing such a motion.” ECF No. 46 at 6. Since dispositive motions have yet to be adjudicated, 2 any requests related to trial or pretrial proceedings are premature. 3 V. Motion for Reconsideration 4 Plaintiff requests that the undersigned reconsider the order denying his request for 5 discovery (ECF No. 62). ECF No. 71. The motion reflects misunderstanding of which of 6 plaintiff’s many motions the court was denying. The order denied plaintiff’s request for 7 discovery (ECF No. 60), which was simply a request for production. Plaintiff appears to believe 8 that the order was denying his motion to compel, which is addressed by this order. Since the 9 court had not ruled on plaintiff’s motion to compel (ECF No. 63) at the time he filed the motion 10 for reconsideration, the motion to reconsider will be denied. 11 VI. Motion for Discovery 12 Plaintiff has filed a motion for discovery, which he also refers to as a Pitchess motion, in 13 which he requests documents from defendants’ personnel records and evidence as required by 14 Brady v. Maryland, 373 U.S. 83 (1963). ECF No. 73. 15 “A Pitchess motion is the procedural method established in Pitchess v. Superior Court, 11 16 Cal. 3d 531 (1974), and later codified by California Penal Code §§ 832.7 and 832.8 and 17 California Evidence Code §§ 1043-1045, that allows for discovery of otherwise privileged 18 personnel records in California.” Cejas v. Brown, No. 18-cv-0543 WQH (JLB), 2019 WL 19 3220154, at *3, 2019 U.S. Dist. LEXIS 119205, at *6-7 (S.D. Cal. July 17, 2019) (citations 20 omitted). “[A] Pitchess motion is not the proper procedure for obtaining production of peace 21 officer personnel and internal affairs records in [federal civil rights cases].” Morris v. Barra, No. 22 10-cv-2642 AJB (BGS), 2012 WL 4900203, at *4, 2012 U.S. Dist. LEXIS 148156, at *12 (S.D. 23 Cal. Oct. 15, 2012); see also Turner v. Spence, No. 07-cv-0022 GGH P, 2008 WL 927709, at *9, 24 2008 U.S. Dist. LEXIS 112296, at *26 (E.D. Cal. Apr. 4, 2008) (citations omitted). 25 Because a Pitchess motion is not the proper method for obtaining peace officer personnel 26 records, the motion will be denied. Furthermore, to the extent the motion can reasonably be 27 construed as a motion to compel, plaintiff has failed to show that he submitted these requests to 28 defendants through a request for production under Federal Rule of Civil Procedure 34, and 1 defendants confirm that he did not (ECF No. 75 at 4). A motion to compel may be filed only 2 after a party fails to adequately respond to discovery requests. Fed. R. Civ. P. 37(a)(3)(B). To 3 the extent the requests have any overlap with plaintiff’s second request for production, which is 4 addressed above in relation to plaintiff’s motion to compel, the motion for discovery is also 5 denied as duplicative. Finally, if plaintiff intended his motion for discovery as a request for 6 production, it is untimely. The deadline for serving requests for discovery was June 3, 2019 (ECF 7 No. 46 at 5, ¶ 6), and plaintiff’s motion for discovery was not served until a month after the 8 deadline had expired with no explanation for the delay. For these reasons, plaintiff’s motion for 9 discovery will be denied. 10 VII. Motions for Appointment of Counsel 11 Plaintiff has requested the appointment of counsel. ECF Nos. 86, 96. The United States 12 Supreme Court has ruled that district courts lack authority to require counsel to represent indigent 13 prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In 14 certain exceptional circumstances, the district court may request the voluntary assistance of 15 counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 16 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 17 “When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the 18 likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims 19 pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965, 20 970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden 21 of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to 22 most prisoners, such as lack of legal education and limited law library access, do not establish 23 exceptional circumstances that would warrant a request for voluntary assistance of counsel. 24 Plaintiff seeks appointment of counsel on the ground that he is “unable to present or 25 prosecute [his] case without an attorney being appointed” because he is in a crisis unit and unable 26 to access the law library or get copies. ECF No. 86 at 1-2. He claims that he “cannot do anything 27 without the court appointing a counselor to represent [his] issues.” Id. at 2. He also claims that 28 he is gravely disabled and unable to function, as evidenced by his transfer to a state mental 1 hospital. ECF No. 96 at 2. However, contrary to plaintiff’s assertion that he is unable to pursue 2 this case without assistance, not only did he file numerous motions leading up to the filing of his 3 requests, but since filing his first request he has also filed a first amended complaint, 4 “Memorandum of Contentions of Fact and Law,” motion for preliminary injunction, pretrial 5 disclosures, a reply in support of one of his motions for temporary restraining order, a request for 6 copies, and an opposition to defendants’ motion for summary judgment. Plaintiff has clearly not 7 been prevented from pursuing this case, and the motions will be denied. 8 VIII. Defendants’ Motion for Summary Judgment 9 Because the deadline for filing dispositive motions was not extended to allow for the 10 resolution of this outstanding discovery matter, and the court has ordered the disclosure of 11 additional documents and the supplementation of responses that plaintiff may wish to utilize in 12 opposition to defendants’ motion for summary judgment, the motion will be vacated. A deadline 13 for defendants to resubmit their motion will be set following completion of the discovery here 14 ordered. 15 Accordingly, IT IS HEREBY ORDERED that: 16 1. The Clerk of the Court is directed to strike the duplicate copies of plaintiff’s motion to 17 compel (ECF Nos. 64, 72); 18 2. Plaintiff’s motion to compel, ECF No. 63, is granted in part and denied in part as 19 follows: 20 a. The motion is granted as to Requests for Production 1 and 2. Within twenty- 21 one days of the service of this order, defendants shall provide supplemental 22 responses to Requests for Production 1 and 2 as set forth in this order. 23 b. If defendants supplement their response to Request for Production 2 with the 24 name of a custodian of record, within one business day they must notify the 25 court of such supplementation, and plaintiff shall have fourteen days from the 26 service of the supplemental response to request service of a subpoena duces 27 tecum on the custodian of record by the United States Marshals. 28 c. The motion is denied as to all interrogatories; 1 3. Plaintiff’s motion for a settlement conference, ECF No. 66, is denied; 2 4. Plaintiffs motions for a pretrial conference, ECF No. 67, and for separate trials, ECF 3 | No. 69, are denied; 4 5. Plaintiff’s motion for reconsideration, ECF No. 71, is denied; 5 6. Plaintiff’s motion for discovery, ECF No. 73, is denied; 6 7. Plaintiffs motions for appointment of counsel, ECF No. 86, 96, are denied. 7 8. Defendants’ motion for summary judgment, ECF No. 93, is vacated. A deadline for 8 || defendants to resubmit their motion for summary judgment will be set following completion of 9 | the discovery here ordered. 10 | DATED: November 25, 2019 ~ 1 HhtAter—Chare ALLISON CLAIRE 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16