(PC) Muhammad v. Seibel

Opinion

1 2 3 4 5 6 7 10 11 KWESI MUHAMMAD, No. 2:18-cv-2831 WBS AC P 12 Plaintiff, 13 v. ORDER 14 R. BURTON, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, is pursuing relief under Title II of the 18 Americans with Disabilities Act (ADA), 42 U.S.C. § 12131 et seq., and Section 504 of the 19 Rehabilitation Act (RA), 29 U.S.C.A. § 794. Currently pending before the court are plaintiff’s 20 motions for summary judgment, for additional discovery, to appoint counsel, and to vacate. ECF 21 Nos. 47-50, 54, 59, 62. Also before the court is defendant’s response to the court’s order to show 22 cause. ECF No. 57. 23 I. Procedural History 24 Prior to the close of discovery, plaintiff filed a motion for summary judgment. ECF Nos. 25 47-50. Then on April 8, 2022,1 the last day to file discovery-related motions, plaintiff filed a 26 1 Although the motion was not received until April 13, 2022, plaintiff’s certificate of service 27 reflected that it was mailed on April 8, 2022. See Houston v. Lack, 487 U.S. 266, 276 (1988) (establishing rule that a prisoner’s court document is deemed filed on the date the prisoner 28 delivered the document to prison officials for mailing). 1 motion for a seventy-five-day extension of time to complete discovery. ECF No. 51. Shortly 2 thereafter, defendant sought an extension of time to respond to plaintiff’s motion for summary 3 judgment, on the ground that he intended to bring a cross-motion for summary judgment that 4 would largely rely on the same arguments and evidence. ECF No. 52. 5 After considering the motions, the court construed the motion for an extension of time to 6 complete discovery as a motion for court-ordered discovery of the Plant Operations Work 7 Requests and directed defendant to show cause why the requested documents should not be 8 produced. ECF No. 53 at 3. The motion was otherwise denied. Id. In light of the pending 9 discovery matter, briefing on plaintiff’s motion for summary judgment was stayed, with a briefing 10 schedule on cross-motions for summary judgment to issue following resolution of the discovery 11 dispute. Id. Defendant has now responded to the order to show cause (ECF No. 57) and plaintiff 12 has moved to vacate his motion for summary judgment (ECF No. 62). Plaintiff has also filed a 13 motion for additional discovery in which he seeks the production of additional documents (ECF 14 No. 54) and a motion to appoint counsel (ECF No. 59). 15 II. Plaintiff’s Motion for Summary Judgment 16 Plaintiff has filed a motion to vacate his motion for summary judgment and requests leave 17 to respond to defendant’s motion for summary judgment instead. ECF No. 62. The motion to 18 vacate will be construed as a motion to withdraw the motion for summary judgment and will be 19 granted. The court will also set a deadline for defendant to file his motion for summary 20 judgment. Plaintiff will have twenty-one days from the service of defendant’s motion to file any 21 response. 22 III. Order to Show Cause 23 The court construed plaintiff’s motion for an extension of time to seek discovery as a 24 motion for court-ordered discovery of the Plant Operations Work Requests. ECF No. 53 at 2. In 25 so construing the motion, the court found that 26 plaintiff’s desire to seek production of Plant Operations Work Requests is reasonable in light of defendant’s responses to Requests 27 for Admissions Nos. 13 and 14 (respectively admitting that C- Wing’s ground floor shower compartment underwent construction 28 and/or alterations between January 23, 1993 and September 15, 1 2010; denying knowledge whether any construction or alterations occurred since 1991;[2] and denying that any such construction and/or 2 alterations triggered applicability of the 1991 or 2010 ADA Standards). ECF No. 51 at 13-14. 3 4 Id. at 2. Defendant was then ordered to show cause “why he should not produce to plaintiff 5 copies of all Plant Operations Work Requests (CDCR Forms 2184) generated from January 23, 6 1993 through February 22, 2018, regarding the DVI C-Wing’s ground floor shower 7 compartment.” Id. at 3 (footnote omitted). Defendant has now responded and requests that the 8 court vacate the order to show cause and deny plaintiff’s motion for production. ECF No. 57. 9 Defendant argues that the motion for production should be denied because plaintiff never 10 made a timely request for the documents while discovery was open, and requiring defendant to 11 respond would be unduly burdensome because the request “covers a significant time period long 12 before Plaintiff’s relevant claims and would require Defendant to expend a significant amount of 13 resources to search for any potentially responsive documents.” Id. at 1. Specifically, defendant 14 asserts that the only discovery plaintiff propounded during the discovery period was his request 15 for admissions; the complaint concerns events between January 16 and February 22, 2018; and 16 plaintiff has failed to explain why he requires records dating back to 1993. Id. at 2-3. He also 17 asserts that requiring production of the requested documents would require the expenditure of 18 significant resources because the work requests were never digitized, and since DVI’s closure on 19 September 30, 2021, there are no full-time staff members physically at DVI to assist with locating 20 documents. Id. at 3. CDCR staff have already conducted a search for the work requests and the 21 search, including a physical search of DVI, has located only nine pages of responsive work 22 request forms and a separate work order status report that should contain the information plaintiff 23 seeks. Id. at 3-4. A more thorough search for responsive work orders would require the CDCR to 24 send custody staff to DVI to conduct a second manual search of the institution, which could take

25 2 It appears that defendant made a typographical error in responding to Request for Admission 26 No. 14 when he stated he was unable to admit or deny whether any construction or alterations had taken place since 1991. ECF No. 51 at 14. Request for Admission No. 14 asked defendant to 27 admit that any constructions or alterations had occurred since March 15, 2012, and he admitted in response to Request for Admission No. 13 that construction or alterations had taken place 28 between January 23, 1993 and September 15, 2010. Id. at 13-14. 1 one staff member approximately forty hours to complete. Id. at 3. Defendant proposes that if the 2 court determines plaintiff is entitled to the information, he be required to produce only the nine 3 pages of responsive work orders that have already been located and the Plant Operations Work 4 Order Status Report that summarizes all of the work orders that were completed during the 5 timeframe requested by plaintiff. Id. at 4. 6 In reply, plaintiff argues that he could not have known how defendant would respond to 7 his requests for admissions. ECF No. 58 at 1. He further states that he believes defendant is 8 misrepresenting the responsive documents available because he made a public records request for 9 “all notifications made by the Correctional Plant Manager II at Deuel Vocational Institution 10 (DVI) to the Institution Standards and Operations section regarding all ADA 11 modification/alterations planned for the ground floor shower compartment in C-Wing housing 12 unit from January 2011 through August 2021” and was advised that there were forty pages of 13 public records responsive to his request. Id. at 2. 14 Defendant’s objection to the timeliness of plaintiff’s request is well-taken. The deadline 15 for serving written discovery requests was sixty days prior to the close of discovery, and plaintiff 16 did not make his request for an extension of time to seek those documents until the date discovery 17 closed. While it is true that plaintiff could not have known how defendant would respond to his 18 requests for admission, defendant’s responses did not reference the documents plaintiff now 19 seeks. See ECF No. 51 at 13-14. Plaintiff’s specific request for “Plant Operations Work 20 Requests (CDCR 2184) forms” therefore indicates that he was aware such documents existed and 21 simply chose not to request them until he got denials where he expected to get admissions. Id. at 22 2. Plaintiff has provided no explanation for his failure to seek other discovery during the time 23 provided. The court similarly finds that requiring defendant to produce copies of the work 24 requests would be unduly burdensome, due to both the scope of the request and the resources that 25 would have to be expended to locate any existing copies. Plaintiff’s argument that the response to 26 his public records request proves defendant is misrepresenting the available documents and the 27 difficulty in locating them is unconvincing since his public records request covered a different 28 time period and sought a broader category of documents. It is therefore unsurprising that the 1 public records request yielded different results. The court therefore finds that defendant has 2 discharged the order to show cause. 3 Although defendant has discharged the order to show cause and plaintiff clearly failed to 4 make a timely request for documents, in the interests of justice the court will order defendant to 5 produce the nine pages of Plant Operations Work Requests and the non-confidential Work Order 6 Status Report that summarizes the work orders completed. Though the court agrees the 7 timeframe requested is overbroad, defendant does not propose any alternate timeframe or identify 8 any excessive burden in producing these documents which are already in his possession. 9 IV. Motion for Additional Discovery 10 On May 5, 2022, the court received plaintiff’s motion for additional discovery, which was 11 dated April 29, 2022. ECF No. 54. The motion seeks to compel defendant to “produce copies of 12 DVI’s quarterly Armstrong Monitoring Tour reports from 2017 and 2018 regarding C-Wing’s 13 ground floor shower compartment,” which he requires to refute defendant’s responses to Requests 14 for Admission Nos. 24-25. Id. at 1-2. Even giving plaintiff the benefit of the prison mailbox rule, 15 this motion comes nearly a month after the close of discovery and nearly three months after the 16 deadline for serving written discovery requests. Moreover, the requests for admission explicitly 17 reference these reports, demonstrating that plaintiff was aware of their existence at the time he 18 propounded his requests for admission. Id. at 15-16. As discussed above, plaintiff did not serve 19 any written discovery requests other than his requests for admission, and he has offered no 20 explanation for his failure to propound other discovery. The motion to compel defendant to 21 produce these documents will therefore be denied. 22 V. Motion to Appoint Counsel 23 Plaintiff has requested the appointment of counsel. ECF No. 59. The United States 24 Supreme Court has ruled that district courts lack authority to require counsel to represent indigent 25 prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In 26 certain exceptional circumstances, the district court may request the voluntary assistance of 27 counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 28 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 1 “When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the 2 likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims 3 pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965, 4 970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden 5 of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to 6 most prisoners, such as lack of legal education and limited law library access, do not establish 7 exceptional circumstances that would warrant a request for voluntary assistance of counsel. 8 Plaintiff requests counsel on the grounds that he has been diagnosed with post-COVID 9 chronic fatigue syndrome, which qualifies as a disability under the ADA; has no experience in 10 trial proceedings; and is likely to prevail at trial based on overwhelming documentary evidence. 11 ECF No. 59 at 2; ECF No. 59-1 at 1-2. Lack of legal experience and having a disability are 12 circumstances common to many prisoners and therefore fail to establish the necessary 13 extraordinary circumstances to warrant appointment of counsel. Furthermore, plaintiff’s 14 conclusory assertion that he is highly likely to prevail at trial does not establish a likelihood of 15 success on the merits and, contrary to plaintiff’s assertion that this case has been set for a jury 16 trial, it has not yet been determined that this case will proceed to trial. Any request based on the 17 need for counsel at trial is therefore premature. 18 The court further finds that the level of understanding exhibited by plaintiff in pursuing 19 this case demonstrates that he can adequately represent himself. Plaintiff was able to successfully 20 state a claim that survived screening and, despite his claim that his disability renders him unable 21 to continue pursuing this case without assistance, his motion for counsel presented a legal 22 argument that was supported with allegations, an applicable rule, case law, and exhibits. ECF 23 No. 59. 24 For these reasons, plaintiff has not shown the existence of extraordinary circumstances 25 warranting the appointment of counsel and the motion will be denied. 27 Accordingly, IT IS HEREBY ORDERED that: 28 1. Plaintiff’s motion to withdraw (ECF No. 62) is GRANTED and plaintiff’s motion for 1 || summary judgment (ECF Nos. 47-50) is WITHDRAWN. 2 2. Within thirty days of the filing of this order, defendant may file a motion for summary 3 || judgment. Plaintiff's response is due twenty-one days after service of the motion and defendant 4 || may file a reply within fourteen days of the filing of the response. 5 3. The April 26, 2022 order to show cause (ECF No. 53) is DISCHARGED. 6 4. Plaintiffs request for Plant Operations Work Requests (ECF No. 51) is GRANTED to 7 || the extent that defendant shall serve plaintiff with a copy of the nine pages of Plant Operations 8 | Work Requests that were located and the Plant Operations Work Order Status Report within 9 || fourteen days of the service of this order. The request is otherwise DENIED. 10 5. Plaintiffs motion for additional discovery (ECF No. 54) is DENIED. 11 6. Plaintiffs motion for appointment of counsel (ECF No. 59) is DENIED. 12 | DATED: March 20, 2024 ~ 13 ththienr—Chnp—e_ ALLISON CLAIRE 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28