1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 VILAYCHITH KHOUANMANY, Case No. 2:17-cv-01326-TLN-JDP (PC) 12 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION TO MODIFY THE SCHEDULING ORDER 13 v. AND DENYING (1) PLAINTIFF’S MOTION TO COMPEL, (2) PLAINTIFF’S MOTION 14 BEN ALENCASTRE, et al.,1 FOR APPOINTMENT OF COUNSEL, AND (3) DEFENDANTS’ MOTION FOR AN 15 Defendants. EXTENSION OF TIME 16 ECF Nos. 151, 156, 161, 163 17 FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF’S MOTION FOR 18 SUMMARY JUDGMENT BE DENIED 19 ECF No. 162 20 21 Plaintiff is a federal prisoner without counsel alleging claims under Bivens v. Six 22 Unknown Named Agents, 403 U.S. 388 (1971). Five motions are currently pending before the 23 court. 24 First, plaintiff has filed a motion to modify the court’s scheduling order, ECF No. 151, 25 and a motion to compel defendant Deppe to provide responses to interrogatories and requests for 26 1 This action proceeds on the third amended complaint’s Eighth Amendment claims 27 against defendants Alencastre and Deppe. ECF Nos. 125, 128, 139. Accordingly, the Clerk of the Court is directed to amend the case name to Khouanmany v. Alencastre, 2:17-cv-01326-TLN- 28 JDP. 1 production of documents, ECF No. 161. Defendants have filed oppositions to both. ECF No. 2 157, 163. Plaintiff’s motion to modify the scheduling order will be granted and her motion to 3 compel denied. 4 The court issued an initial scheduling order on June 27, 2019. ECF No. 96. At that time, 5 this action proceeded on the second amended complaint’s Eighth Amendment claims against 6 defendant Alencastre. ECF No. 72, 73, 97. The scheduling order required discovery to be 7 completed by December 6, 2019, and dispositive motions to be filed by February 28, 2020. ECF 8 No. 96 at 4. In May 2020, plaintiff was granted leave to file a third amended complaint, which 9 added Eighth Amendment claims against defendant Deppe. ECF Nos. 128, 139. After Deppe 10 appeared in this action and answered the third amended complaint, the court issued a 11 supplemental scheduling order that permitted plaintiff and Deppe to conduct discovery. Pursuant 12 to that scheduling order, plaintiff and Deppe were required to serve all discovery requests by 13 September 11, 2020, and to complete all discovery, including filing any motions to compel 14 discovery, by November 13, 2020. ECF No. 138 at 1. Dispositive motions were to be filed by no 15 later than February 26, 2021. Id. at 2. 16 Plaintiff’s motion to modify the supplemental scheduling order asks that “any and all 17 deadlines” be extended. ECF No. 151. A court can modify its scheduling order only upon a 18 showing of good cause. Fed. R. Civ. P. 16(b)(4). In determining whether good cause exists, 19 courts primarily consider the moving party’s diligence. Johnson v. Mammoth Recreations, Inc., 20 975 F.2d 604, 608 (9th Cir. 1992). Thus, the “court may modify the pretrial schedule if it cannot 21 reasonably be met despite the diligence of the party seeking the extension.” Id. 22 Plaintiff appears to contend that she was unable to timely complete discovery because her 23 prison was “in lockdown” beginning April 2020.2 ECF No. 151. But that contention is belied by 24 the docket in this case, which reflects that plaintiff has had little difficulty mailing documents 25 since the purported “lockdown” was implemented. On May 14, 2020, she submitted the forms 26 necessary to effect service on defendant Deppe. ECF No. 129. Less than a week later, she timely 27 2 Plaintiff does describe the conditions of her institution’s lockdown or explain how the 28 prison’s restrictions prevented her from comply with the scheduling order’s deadlines. 1 submitted objections to the May 5, 2020 findings and recommendations. ECF No. 131. In June 2 2020, she filed a response to defendant Alencastre’s answer, ECF No. 140, and a notice of appeal, 3 ECF No. 141. The following month, she filed a response to defendant Deppe’s answer, ECF No. 4 143, and her tenth motion for appointment of counsel, ECF No. 145. And in September 2020, she 5 filed a notice of change of address. ECF No. 148. 6 It is difficult to believe that the prison’s “lockdown” precluded plaintiff from serving 7 discovery but not from filing documents with the court. Nevertheless, the record does suggest 8 that plaintiff attempted, albeit unsuccessfully, to comply with the September 11, 2020 deadline 9 for serving requests for discovery. In her motion to compel, plaintiff states that on September 8, 10 2021, she delivered to a correctional officer copies of interrogatories and requests for production 11 of documents. ECF No. 161 at 1. And while defendants’ counsel contends that he did not receive 12 any discovery requests in September 2020, ECF No. at 164 at 1, nothing in the record directly 13 refutes plaintiff’s claim that she attempted to timely serve discovery requests. 14 I will grant plaintiff’s motion to modify the scheduling order and allow her an opportunity 15 to obtain discovery from Duppe. However, the deadline for completion of discovery will be 16 extended for the limited purpose of allowing plaintiff to serve Duppe with one set of 17 interrogatories and one set of requests for production of documents. Plaintiff is admonished that 18 her discovery requests can only seek information related to her Eighth Amendment claims for the 19 sexual assaults that allegedly occurred on February 26, 2016. No other discovery is permitted. 20 Plaintiff’s motion to compel, ECF No. 161, is denied given that Duppe never received the 21 discovery requests that are subject to that motion. 22 Plaintiff has also filed her tenth motion for appointment of counsel. ECF No. 156. As 23 plaintiff has previously been informed, she does not have a constitutional right to appointed 24 counsel in this action, see Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court 25 lacks the authority to require an attorney to represent plaintiff, see Mallard v. U.S. District Court 26 for the Southern District of Iowa, 490 U.S. 296, 298 (1989). The court can request the voluntary 27 assistance of counsel. See 28 U.S.C. § 1915(e)(1) (“The court may request an attorney to 28 represent any person unable to afford counsel”); Rand, 113 F.3d at 1525. However, without a 1 means to compensate counsel, the court will seek volunteer counsel only in exceptional 2 circumstances. In determining whether such circumstances exist, “the district court must evaluate 3 both the likelihood of success on the merits [and] the ability of the [plaintiff] to articulate his 4 claims pro se in light of the complexity of the legal issues involved.” Rand, 113 F.3d at 1525 5 (internal quotation marks and citations omitted). Plaintiff has not demonstrated that these factors 6 weight in favor of appointing her counsel, and her motion is therefore denied. 7 Lastly, plaintiff has filed a motion for summary judgment. ECF No. 162. This motion 8 amounts to little more than a recitation of legal principles. It does not advance any specific 9 arguments relating to her claims against defendants and, more significantly, it is not supported by 10 evidence. The motion also fails comply with the requirements of Local Rule 260(a).
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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 VILAYCHITH KHOUANMANY, Case No. 2:17-cv-01326-TLN-JDP (PC) 12 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION TO MODIFY THE SCHEDULING ORDER 13 v. AND DENYING (1) PLAINTIFF’S MOTION TO COMPEL, (2) PLAINTIFF’S MOTION 14 BEN ALENCASTRE, et al.,1 FOR APPOINTMENT OF COUNSEL, AND (3) DEFENDANTS’ MOTION FOR AN 15 Defendants. EXTENSION OF TIME 16 ECF Nos. 151, 156, 161, 163 17 FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF’S MOTION FOR 18 SUMMARY JUDGMENT BE DENIED 19 ECF No. 162 20 21 Plaintiff is a federal prisoner without counsel alleging claims under Bivens v. Six 22 Unknown Named Agents, 403 U.S. 388 (1971). Five motions are currently pending before the 23 court. 24 First, plaintiff has filed a motion to modify the court’s scheduling order, ECF No. 151, 25 and a motion to compel defendant Deppe to provide responses to interrogatories and requests for 26 1 This action proceeds on the third amended complaint’s Eighth Amendment claims 27 against defendants Alencastre and Deppe. ECF Nos. 125, 128, 139. Accordingly, the Clerk of the Court is directed to amend the case name to Khouanmany v. Alencastre, 2:17-cv-01326-TLN- 28 JDP. 1 production of documents, ECF No. 161. Defendants have filed oppositions to both. ECF No. 2 157, 163. Plaintiff’s motion to modify the scheduling order will be granted and her motion to 3 compel denied. 4 The court issued an initial scheduling order on June 27, 2019. ECF No. 96. At that time, 5 this action proceeded on the second amended complaint’s Eighth Amendment claims against 6 defendant Alencastre. ECF No. 72, 73, 97. The scheduling order required discovery to be 7 completed by December 6, 2019, and dispositive motions to be filed by February 28, 2020. ECF 8 No. 96 at 4. In May 2020, plaintiff was granted leave to file a third amended complaint, which 9 added Eighth Amendment claims against defendant Deppe. ECF Nos. 128, 139. After Deppe 10 appeared in this action and answered the third amended complaint, the court issued a 11 supplemental scheduling order that permitted plaintiff and Deppe to conduct discovery. Pursuant 12 to that scheduling order, plaintiff and Deppe were required to serve all discovery requests by 13 September 11, 2020, and to complete all discovery, including filing any motions to compel 14 discovery, by November 13, 2020. ECF No. 138 at 1. Dispositive motions were to be filed by no 15 later than February 26, 2021. Id. at 2. 16 Plaintiff’s motion to modify the supplemental scheduling order asks that “any and all 17 deadlines” be extended. ECF No. 151. A court can modify its scheduling order only upon a 18 showing of good cause. Fed. R. Civ. P. 16(b)(4). In determining whether good cause exists, 19 courts primarily consider the moving party’s diligence. Johnson v. Mammoth Recreations, Inc., 20 975 F.2d 604, 608 (9th Cir. 1992). Thus, the “court may modify the pretrial schedule if it cannot 21 reasonably be met despite the diligence of the party seeking the extension.” Id. 22 Plaintiff appears to contend that she was unable to timely complete discovery because her 23 prison was “in lockdown” beginning April 2020.2 ECF No. 151. But that contention is belied by 24 the docket in this case, which reflects that plaintiff has had little difficulty mailing documents 25 since the purported “lockdown” was implemented. On May 14, 2020, she submitted the forms 26 necessary to effect service on defendant Deppe. ECF No. 129. Less than a week later, she timely 27 2 Plaintiff does describe the conditions of her institution’s lockdown or explain how the 28 prison’s restrictions prevented her from comply with the scheduling order’s deadlines. 1 submitted objections to the May 5, 2020 findings and recommendations. ECF No. 131. In June 2 2020, she filed a response to defendant Alencastre’s answer, ECF No. 140, and a notice of appeal, 3 ECF No. 141. The following month, she filed a response to defendant Deppe’s answer, ECF No. 4 143, and her tenth motion for appointment of counsel, ECF No. 145. And in September 2020, she 5 filed a notice of change of address. ECF No. 148. 6 It is difficult to believe that the prison’s “lockdown” precluded plaintiff from serving 7 discovery but not from filing documents with the court. Nevertheless, the record does suggest 8 that plaintiff attempted, albeit unsuccessfully, to comply with the September 11, 2020 deadline 9 for serving requests for discovery. In her motion to compel, plaintiff states that on September 8, 10 2021, she delivered to a correctional officer copies of interrogatories and requests for production 11 of documents. ECF No. 161 at 1. And while defendants’ counsel contends that he did not receive 12 any discovery requests in September 2020, ECF No. at 164 at 1, nothing in the record directly 13 refutes plaintiff’s claim that she attempted to timely serve discovery requests. 14 I will grant plaintiff’s motion to modify the scheduling order and allow her an opportunity 15 to obtain discovery from Duppe. However, the deadline for completion of discovery will be 16 extended for the limited purpose of allowing plaintiff to serve Duppe with one set of 17 interrogatories and one set of requests for production of documents. Plaintiff is admonished that 18 her discovery requests can only seek information related to her Eighth Amendment claims for the 19 sexual assaults that allegedly occurred on February 26, 2016. No other discovery is permitted. 20 Plaintiff’s motion to compel, ECF No. 161, is denied given that Duppe never received the 21 discovery requests that are subject to that motion. 22 Plaintiff has also filed her tenth motion for appointment of counsel. ECF No. 156. As 23 plaintiff has previously been informed, she does not have a constitutional right to appointed 24 counsel in this action, see Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court 25 lacks the authority to require an attorney to represent plaintiff, see Mallard v. U.S. District Court 26 for the Southern District of Iowa, 490 U.S. 296, 298 (1989). The court can request the voluntary 27 assistance of counsel. See 28 U.S.C. § 1915(e)(1) (“The court may request an attorney to 28 represent any person unable to afford counsel”); Rand, 113 F.3d at 1525. However, without a 1 means to compensate counsel, the court will seek volunteer counsel only in exceptional 2 circumstances. In determining whether such circumstances exist, “the district court must evaluate 3 both the likelihood of success on the merits [and] the ability of the [plaintiff] to articulate his 4 claims pro se in light of the complexity of the legal issues involved.” Rand, 113 F.3d at 1525 5 (internal quotation marks and citations omitted). Plaintiff has not demonstrated that these factors 6 weight in favor of appointing her counsel, and her motion is therefore denied. 7 Lastly, plaintiff has filed a motion for summary judgment. ECF No. 162. This motion 8 amounts to little more than a recitation of legal principles. It does not advance any specific 9 arguments relating to her claims against defendants and, more significantly, it is not supported by 10 evidence. The motion also fails comply with the requirements of Local Rule 260(a). Given the 11 motion’s deficiencies, as well as plaintiff’s need to complete discovery, I recommend that 12 plaintiff’s motion for summary judgment be denied without prejudice.3 13 Should plaintiff wish to renew her motion for summary judgment, she must comply with 14 Local Rule 260(a). That rule requires motions for summary judgment to be accompanied by a 15 “Statement of Undisputed Facts” that identifies “each of the specific material facts relied upon in 16 support of the motion and cite the particular portions of any pleading, affidavit, deposition, 17 interrogatory answer, admission, or other document relied upon to establish that fact.” The 18 moving party must also file each evidentiary document cited in the motion for summary 19 judgment. E.D. Cal. L.R. 260(a). 20 Accordingly, it is hereby ORDERED that: 21 1. Plaintiff’s motion to modify the scheduling order, ECF No. 151, is granted. 22 2. The supplemental scheduling order, ECF No. 138, is modified as follows: 23 a. plaintiff is granted until August 27, 2021 to serve one set of interrogatories and 24 one set of requests for production of documents on defendant Deppe; 25 b. the interrogatories and requests for production of documents may only seek 26
27 3 Defendants have filed a motion for an extension of time to file a response to plaintiff’s motion for summary judgment. ECF No. 163. In light of the recommendation that plaintiff’s 28 motion be denied, defendants’ motion for an extension of time is denied as moot. 1 information related to plaintiff’s Eighth Amendment claims for the sexual assaults that allegedly 2 occurred on February 26, 2016; 3 c. plaintiff must serve her discovery requests on defendant Deppe’s attorney of 4 record at the following address: 5 Chi Soo Kim 6 United States Attorney's Office 7 501 "I" Street Suite 10-100 8 Sacramento, CA 95814
9 10 d. any motion to compel Deppe’s responses to discovery shall be filed by no later 11 than October 15, 2021; and 12 e. the deadline for filing dispositive motions is extended to January 7, 2022. 13 3. Plaintiff’s motion for appointment of counsel, ECF No. 156, is denied. 14 4. Plaintiff’s motion to compel, ECF No. 161, is denied without prejudice. 15 5. Defendants’ motion for an extension of time, ECF No. 163, is denied as moot. 16 Further, it is RECOMMENDED that plaintiff’s motion for summary judgment, ECF No. 17 162, be denied without prejudice. 18 These findings and recommendations are submitted to the United States District Judge 19 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days of 20 being served with these findings and recommendations, any party may file written objections with 21 the court and serve a copy on all parties. Such objections should be captioned “Objections to 22 Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be 23 served and filed within fourteen days after service of the objections. The parties are advised that 24 failure to file objections within the specified time may waive the right to appeal the District 25 Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 26 1153 (9th Cir. 1991).
27 28 IT IS SO ORDERED.
* | Dated: _ July 28, 2021 gene Ws 4 JEREMY D. PETERSON ; UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28