1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 THOMAS LEE GLEASON, JR, No. 2:20-cv-00775-KJM-CKD P 12 Plaintiff, 13 v. ORDER 14 CALIFORNIA DEPARTMENT OF CORRECTION & REHABILITATION, et 15 al., 16 Defendants. 17 18 Plaintiff is a former state prisoner proceeding pro se and in forma pauperis in this civil 19 rights action filed pursuant to 42 U.S.C. § 1983. This case is proceeding on plaintiff’s First 20 Amendment retaliation and supplemental state law claims against defendant Romary, a 21 correctional officer at California State Prison-Solano, based on the destruction of plaintiff’s 22 personal property on or about August 4, 2019. ECF No. 8 at 5. Currently pending before the 23 court are a total of thirteen motions filed by plaintiff, the majority of which are duplicative and 24 redundant. The court will address each different category of motions filed by plaintiff, and then 25 deny the remaining motions as duplicative in the interests of judicial economy. The court will not 26 resolve plaintiff’s partial motion for summary judgment (ECF No. 30) or defendant’s motion for 27 sanctions (ECF No. 59) in this order. 28 ///// 1 I. Motion for the Appointment of Counsel 2 Plaintiff requests that the court appoint him counsel “to help combat the professional lies” 3 of defendant Romary. ECF No. 44. District courts lack authority to require counsel to represent 4 indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 5 (1989). In exceptional circumstances, the court may request an attorney to voluntarily represent 6 such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 7 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining 8 whether “exceptional circumstances” exist, the court must consider plaintiff’s likelihood of 9 success on the merits as well as the ability of the plaintiff to articulate his claims pro se in light of 10 the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) 11 (district court did not abuse discretion in declining to appoint counsel). The burden of 12 demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to most 13 prisoners, such as lack of legal education and limited law library access, do not establish 14 exceptional circumstances that warrant a request for voluntary assistance of counsel. 15 Having considered the factors under Palmer, the court finds that plaintiff has failed to 16 meet his burden of demonstrating exceptional circumstances warranting the appointment of 17 counsel at this time. 18 II. Motion to Recuse the California Attorney General’s Office 19 In this motion, plaintiff seeks an order requiring the California Attorney General’s Office 20 to recuse itself from representing defendant Romary based on an alleged conflict of interest. ECF 21 No. 35. According to plaintiff, defendant Romary should not be rewarded for misconduct by 22 receiving free legal representation by the Attorney General’s Office. Id. Plaintiff does not 23 provide any legal authority supporting his request and, on this basis alone, the motion will be 24 denied. 25 III. Plaintiff’s Motion for Sanctions 26 In his first motion for sanctions, plaintiff contends that defendants failed to comply with 27 this court’s September 7, 2021 order regarding the production of discovery documents to plaintiff. 28 ECF No. 37. In a subsequently filed motion, plaintiff clarifies that he was finally permitted to 1 view two of the documents on October 26, 2021, but they were redacted. ECF No. 39. 2 Defendants filed an opposition to plaintiff’s request indicating that they did comply with 3 the court’s order by providing plaintiff the opportunity to view the redacted documents on two 4 separate occasions, although both times were not within the timeframe ordered by the court due to 5 miscommunications and Covid-related prison restrictions on inmate movements. See ECF No. 48 6 at 3-4. 7 Plaintiff’s motions for sanctions filed after defendants’ opposition are based on defendant 8 Romary’s alleged false declaration filed in opposition to plaintiff’s summary judgment motion. 9 ECF Nos. 51, 54, 55. There no longer appears to be any dispute about defendants’ compliance 10 with the court’s order other than the redactions that were made to some of the documents. 11 The court finds that defendant’s delay in complying with the court’s September 7, 2021 12 order was not done in bad faith. Additionally, the court emphasizes that defendant was ordered to 13 produce redacted copies of the documents. See ECF No. 29 at 7-8 (imposing a protective order 14 on the materials required to be produced to plaintiff). Therefore, sanctions on the basis of the 15 redactions alone are not warranted. For all these reasons, plaintiff’s motion for sanctions will be 16 denied. 17 IV. Motion to Reopen Discovery 18 By order dated April 26, 2021, this court set the discovery cut-off date as August 27, 19 2021. ECF No. 24. On July 8, 2021, the court granted defendants’ ex parte motion to modify the 20 discovery and scheduling order by extending the cut-off date to October 26, 2021. See ECF No. 21 28. 22 On the day that discovery closed, plaintiff filed a motion to extend the discovery deadline 23 by another 60 days because he had not received a response to several of his discovery requests 24 propounded on defendants.1 ECF No. 40. Because this motion was not received by the court 25 until after the discovery period had closed, the court construes this as a motion to modify the 26 discovery and scheduling order by reopening discovery. 27 1 The constructive filing date was determined using the prison mailbox rule. See Houston v. 28 Lack, 487 U.S. 266 (1988). 1 Defendants filed an opposition to this motion indicating that the lack of response was 2 based on the fact that plaintiff’s discovery requests were not timely served. ECF No. 41 at 3. 3 Defendants further point out that plaintiff did not provide any explanation, or good cause, for his 4 untimely discovery requests especially because he was able to timely serve discovery requests on 5 defendants in both May and June 2021. Id. 6 Following defendant’s opposition, plaintiff filed two separate motions to reopen discovery 7 in this case. See ECF Nos. 45, 49. In both motions, plaintiff requests discovery to be reopened 8 based on defendant Romary’s alleged lies and perjury. ECF Nos. 45, 49. 9 Pursuant to Rule 16(b) of the Federal Rules of Civil Procedure, a scheduling order “may 10 be modified only for good cause and with the judge's consent.” Fed. R. Civ. P. 16(b)(4). This 11 good cause standard “primarily considers the diligence of the party seeking the amendment.” 12 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 THOMAS LEE GLEASON, JR, No. 2:20-cv-00775-KJM-CKD P 12 Plaintiff, 13 v. ORDER 14 CALIFORNIA DEPARTMENT OF CORRECTION & REHABILITATION, et 15 al., 16 Defendants. 17 18 Plaintiff is a former state prisoner proceeding pro se and in forma pauperis in this civil 19 rights action filed pursuant to 42 U.S.C. § 1983. This case is proceeding on plaintiff’s First 20 Amendment retaliation and supplemental state law claims against defendant Romary, a 21 correctional officer at California State Prison-Solano, based on the destruction of plaintiff’s 22 personal property on or about August 4, 2019. ECF No. 8 at 5. Currently pending before the 23 court are a total of thirteen motions filed by plaintiff, the majority of which are duplicative and 24 redundant. The court will address each different category of motions filed by plaintiff, and then 25 deny the remaining motions as duplicative in the interests of judicial economy. The court will not 26 resolve plaintiff’s partial motion for summary judgment (ECF No. 30) or defendant’s motion for 27 sanctions (ECF No. 59) in this order. 28 ///// 1 I. Motion for the Appointment of Counsel 2 Plaintiff requests that the court appoint him counsel “to help combat the professional lies” 3 of defendant Romary. ECF No. 44. District courts lack authority to require counsel to represent 4 indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 5 (1989). In exceptional circumstances, the court may request an attorney to voluntarily represent 6 such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 7 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining 8 whether “exceptional circumstances” exist, the court must consider plaintiff’s likelihood of 9 success on the merits as well as the ability of the plaintiff to articulate his claims pro se in light of 10 the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) 11 (district court did not abuse discretion in declining to appoint counsel). The burden of 12 demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to most 13 prisoners, such as lack of legal education and limited law library access, do not establish 14 exceptional circumstances that warrant a request for voluntary assistance of counsel. 15 Having considered the factors under Palmer, the court finds that plaintiff has failed to 16 meet his burden of demonstrating exceptional circumstances warranting the appointment of 17 counsel at this time. 18 II. Motion to Recuse the California Attorney General’s Office 19 In this motion, plaintiff seeks an order requiring the California Attorney General’s Office 20 to recuse itself from representing defendant Romary based on an alleged conflict of interest. ECF 21 No. 35. According to plaintiff, defendant Romary should not be rewarded for misconduct by 22 receiving free legal representation by the Attorney General’s Office. Id. Plaintiff does not 23 provide any legal authority supporting his request and, on this basis alone, the motion will be 24 denied. 25 III. Plaintiff’s Motion for Sanctions 26 In his first motion for sanctions, plaintiff contends that defendants failed to comply with 27 this court’s September 7, 2021 order regarding the production of discovery documents to plaintiff. 28 ECF No. 37. In a subsequently filed motion, plaintiff clarifies that he was finally permitted to 1 view two of the documents on October 26, 2021, but they were redacted. ECF No. 39. 2 Defendants filed an opposition to plaintiff’s request indicating that they did comply with 3 the court’s order by providing plaintiff the opportunity to view the redacted documents on two 4 separate occasions, although both times were not within the timeframe ordered by the court due to 5 miscommunications and Covid-related prison restrictions on inmate movements. See ECF No. 48 6 at 3-4. 7 Plaintiff’s motions for sanctions filed after defendants’ opposition are based on defendant 8 Romary’s alleged false declaration filed in opposition to plaintiff’s summary judgment motion. 9 ECF Nos. 51, 54, 55. There no longer appears to be any dispute about defendants’ compliance 10 with the court’s order other than the redactions that were made to some of the documents. 11 The court finds that defendant’s delay in complying with the court’s September 7, 2021 12 order was not done in bad faith. Additionally, the court emphasizes that defendant was ordered to 13 produce redacted copies of the documents. See ECF No. 29 at 7-8 (imposing a protective order 14 on the materials required to be produced to plaintiff). Therefore, sanctions on the basis of the 15 redactions alone are not warranted. For all these reasons, plaintiff’s motion for sanctions will be 16 denied. 17 IV. Motion to Reopen Discovery 18 By order dated April 26, 2021, this court set the discovery cut-off date as August 27, 19 2021. ECF No. 24. On July 8, 2021, the court granted defendants’ ex parte motion to modify the 20 discovery and scheduling order by extending the cut-off date to October 26, 2021. See ECF No. 21 28. 22 On the day that discovery closed, plaintiff filed a motion to extend the discovery deadline 23 by another 60 days because he had not received a response to several of his discovery requests 24 propounded on defendants.1 ECF No. 40. Because this motion was not received by the court 25 until after the discovery period had closed, the court construes this as a motion to modify the 26 discovery and scheduling order by reopening discovery. 27 1 The constructive filing date was determined using the prison mailbox rule. See Houston v. 28 Lack, 487 U.S. 266 (1988). 1 Defendants filed an opposition to this motion indicating that the lack of response was 2 based on the fact that plaintiff’s discovery requests were not timely served. ECF No. 41 at 3. 3 Defendants further point out that plaintiff did not provide any explanation, or good cause, for his 4 untimely discovery requests especially because he was able to timely serve discovery requests on 5 defendants in both May and June 2021. Id. 6 Following defendant’s opposition, plaintiff filed two separate motions to reopen discovery 7 in this case. See ECF Nos. 45, 49. In both motions, plaintiff requests discovery to be reopened 8 based on defendant Romary’s alleged lies and perjury. ECF Nos. 45, 49. 9 Pursuant to Rule 16(b) of the Federal Rules of Civil Procedure, a scheduling order “may 10 be modified only for good cause and with the judge's consent.” Fed. R. Civ. P. 16(b)(4). This 11 good cause standard “primarily considers the diligence of the party seeking the amendment.” 12 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). The court may 13 modify the scheduling order “if it cannot reasonably be met despite the diligence of the party 14 seeking the extension.” Id. If the party was not diligent, the inquiry should end. Id. 15 In this case, plaintiff does not offer any explanation for his delay in propounding further 16 discovery requests on defendants which were untimely served. Based on this, the court does not 17 find good cause to reopen discovery in this case. Accordingly, plaintiff’s motion to modify the 18 discovery and scheduling order by reopening discovery is denied. 19 V. Defendant’s Motion for Sanctions 20 Due, in part, to plaintiff’s filing of the pending repetitious motions, defendant filed a 21 motion for sanctions against plaintiff requesting the termination of this case with prejudice as 22 well as monetary sanctions. ECF No. 59. The court has reviewed the motion and is deeply 23 disturbed by the crude, threatening, and denigrating language that plaintiff has used in 24 correspondence with defense counsel in this case. Even more concerning is that plaintiff engaged 25 in such behavior after he was warned against using inappropriate sexual and harassing remarks in 26 another case pending before this court. See Gleason v. Voong, et al., Case No. 2:19-cv-00621- 27 WBS-JDP (E.D. Cal. Sept. 25, 2020) (granting motion for court intervention and warning 28 plaintiff that “any future use of sexually harassing language will be sanctionable.”). Therefore, 1 plaintiff is ordered to show cause in writing within 14 days from the date of this order why 2 defendant’s motion for sanctions should not be granted in light of the prior warnings 3 plaintiff was given. Plaintiff’s response to this order to show cause shall be no more than 7 4 pages in length. The failure to respond to this order to show cause, or the failure to file a 5 response that complies with this court’s order, will result in a recommendation that this 6 action be dismissed. 7 Based on defendant’s pending motion for terminating sanctions, the court will sua sponte 8 vacate the pretrial motions deadline of January 18, 2022 in this case. See ECF No. 28 (order 9 modifying the discovery and scheduling order). The pretrial motions deadline will be reset as 10 necessary upon resolution of defendant’s motion for sanctions. 11 Accordingly, IT IS HEREBY ORDERED that: 12 1. Plaintiff’s motion for the appointment of counsel (ECF No. 44) is denied without 13 prejudice. 14 2. Plaintiff’s motion to recuse the California Attorney General’s Office (ECF No. 35) is 15 denied. 16 3. Plaintiffs motion for sanctions (ECF No. 37) is denied. 17 4. Plaintiff’s motion to modify the discovery and scheduling order and to reopen 18 discovery (ECF No. 40) is denied for lack of good cause shown. 19 5. Plaintiff’s remaining motions (ECF Nos. 39, 45, 47, 49, 50, 51, 54, 55) are denied as 20 duplicative. 21 6. In light of plaintiff’s pattern of filing repetitious and duplicative motions that are 22 vexatious in nature, the court will limit plaintiff’s filings in this matter. Plaintiff 23 shall not file any pleading unless first ordered to do so by the court. Any 24 pleading filed in violation of this order shall be stricken from the docket and 25 subject plaintiff to the imposition of sanctions, including the possible dismissal of 26 this case. 27 7. Plaintiff is ordered to show cause in writing within 14 days from the date of this 28 order why defendant’s motion for sanctions should not be granted. Plaintiff’s ] response to this order to show cause shall be no more than 7 pages in length. 2 The failure to respond to this order to show cause, or the failure to file a response 3 that complies with this court’s order, will result in a recommendation that this 4 action be dismissed for plaintiff’s failure to prosecute this action. 5 || Dated: December 28, 2021 aie } ft | Ld a 4 6 CAROLYN K.DELANEY SOS 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 12/glea0775.pl.msj+misc.docx 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28