1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 EZRA K. WILLIAMS, CDCR #AF-1812, Case No.: 23-cv-0136-BAS-MMP
12 Plaintiff, ORDER: 13 v. (1) GRANTING IN PART 14 PLAINTIFF’S MOTIONS FOR 15 WILLIAM NEWMAN, et al., EXTENSION OF TIME;
16 Defendants. (2) DENYING PLAINTIFF’S 17 MOTION TO APPOINT COUNSEL; AND 18
19 (3) GRANTING DEFENDANT’S EX PARTE MOTION TO TAKE 20 DEPOSITION OF EZRA K. 21 WILLIAMS
22 [ECF Nos. 24, 26, 28, 29, 30, 31] 23 24 25 Plaintiff Ezra K. Williams (“Plaintiff”) has filed a four Motions for Extension of 26 Time (“Motions for Extension of Time”) and a Second Motion to Appoint Counsel 27 (“Second Motion for Appointment of Counsel”). [ECF Nos. 33, 26.] Additionally, 28 Defendants William Newman and Daniel Gallegos (“Defendants”) have filed an Ex Parte 1 Application to Take Deposition of Ezra K. Williams, AR1812, An Incarcerated Person 2 (“Ex Parte Application to Take Plaintiff’s Deposition”). [ECF No. 24.] The Court 3 addresses the Parties’ three motions in turn. 4 I. MOTIONS FOR EXTENSION OF TIME 5 Plaintiff moves for an extension of time to respond to four sets of written discovery, 6 a set of interrogatories and requests for production of documents from both Defendant 7 Newman and Defendant Gallegos, on the ground that he experiences challenges to 8 responding to these discovery requests within the thirty-day deadline due to his work and 9 class schedule as well as his lack of access to a typewriter or word processing software. 10 [ECF Nos. 28, 29, 30, 31.] Plaintiff initially requests thirty-day extensions for Defendants 11 Gallegos and Newman’s respective requests for interrogatories, ECF Nos. 28, 29, and 12 sixty-day extensions for Defendants Gallegos and Newman’s respective requests for 13 production, ECF Nos. 30, 31, that were served on Plaintiff on January 16, 2024. However, 14 Plaintiff later states that he requests until March 16, 2024 to respond to Defendant 15 Newman’s request for interrogatories, April 16, 2024 to respond to Defendant Gallego’s 16 requests for interrogatories, June 16, 2024 to respond to Defendant Newman’s request for 17 production of documents, and August 16, 2024 to respond to Defendant Gallegos’ request 18 for production of documents. [ECF Nos. 28, 29, 30, 31.] 19 Defendants filed a limited opposition to Plaintiff’s Motions, indicating they do not 20 oppose an extension of time but request the Court limit any extension to forty-five to sixty 21 days and to have all written responses due on the same day. [ECF No. 32.] 22 Federal Rule of Civil Procedure (“Rule”) 34(b)(2)(A) provides that the party to 23 whom requests for production of documents are directed must respond in writing within 24 thirty (30) days after being served, and a “shorter or longer time may be stipulated to under 25 Rule 29 or be ordered by the court.” Likewise, Rule 33(b)(2) provides the responding party 26 must serve answers and any objections within thirty (30) days after being served with 27 interrogatories, and “[a] shorter or longer time may be stipulated to under Rule 29 or be 28 ordered by the court.” Having considered Plaintiff’s grounds for the extension, as well as 1 Defendants’ non-opposition, the Court finds a sixty-day (60) extension of time is 2 appropriate at this stage of the proceeding. 3 II. MOTION TO APPOINT COUNSEL 4 “[T]here is no absolute right to counsel in civil proceedings.” Hedges v. Resolution 5 Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994); Palmer v. Valdez, 560 F3d 965, 970 (9th 6 Cir. 2009). Under 20 U.S.C. § 1915(e)(1), district courts have the discretion to appoint 7 counsel for indigent persons under “exceptional circumstances.” Terrell v. Brewer, 935 8 F.2d 1015, 1017 (9th Cir. 1991). “When determining whether ‘exceptional circumstances’ 9 exist, a court may consider ‘the likelihood of success on the merits as well as the ability of 10 the petitioner to articulate his claims pro se in light of the complexity of the legal issues 11 involved.’” Palmer, 560 F.3d at 970 (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th 12 Cir. 1983)). “Neither of these factors is dispositive and both must be viewed together before 13 reaching a decision.’” Terrell, 935 F.2d at 1017 (quoting Wilborn v. Escalderon, 789 F.2d 14 1328, 1331 (9th Cir. 1986)); Agyeman v. Corrections Corp. of Am., 390 F.3d 1101, 1103 15 (9th Cir. 2004); Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990). 16 Plaintiff contends that exceptional circumstances exist to appoint counsel due to his 17 time commitments to tutoring, class, and extracurricular schedules, having to handwrite all 18 his motions and responses, and his inability to litigate pro se a “case involv[ing] complex 19 issues [that] will likely encompass large volumes of discovery and an array of motions, as 20 well as the need to locate, and depose . . . witnesses, and compel discovery.” [ECF No. 26.] 21 Here, the Court does not find such exceptional circumstances at this time. The Court 22 denied Plaintiff’s first request for appointment of counsel, finding that “nothing in 23 Williams’ Complaint suggests he is incapable of articulating the factual basis for his First 24 and Eighth Amendment claims, which appear relatively straightforward,” and that “he has 25 yet to demonstrate—and it is too soon to tell—whether he is likely to succeed on the 26 merits.” [ECF No. 4 at 11–12 (internal quotations and citations omitted).] The Court finds 27 that the circumstances remain substantially the same. Though Plaintiff alleges that the 28 claims are complex, he has not made a showing that his claims are particularly complex or 1 that he is unable to articulate the factual basis of his claims pro se. Plaintiff’s complaint 2 and motions have been articulate and organized and thus far demonstrate that he can 3 sufficiently articulate the factual basis of his claims. Further, Plaintiff has not demonstrated 4 likelihood of success on the merits and likely cannot do so without further factual 5 development. 6 While Plaintiff may not have vast resources or legal training, he is a pro se litigant; 7 as such, his filings are “liberally construed,” and “a pro se complaint, however inartfully 8 pleaded,” is “held to less stringent standards than formal pleadings drafted by lawyers.” 9 Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal citations and quotation marks 10 omitted). The Court recognizes that Plaintiff’s submissions will be subject to this standard, 11 but this does not constitute “exceptional circumstances” for appointment of counsel. 12 Moreover, though the Court sympathizes with Plaintiff’s time constraints, appointment of 13 counsel is not the proper vehicle to address such issues. Further, the Court has already 14 granted Plaintiff additional time to respond to discovery, as set forth above. 15 III. DEFENDANTS’ EX PARTE APPLICATION TO TAKE PLAINTIFF’S 16 DEPOSITION 17 The Court finds that Defendants have satisfied the requirements for leave to depose 18 Plaintiff. 19 Plaintiff is currently in the custody of the California Department of Corrections and 20 Rehabilitation at California Correctional Institution in Tehachapi, California. Defendants 21 request an order allowing them to take Plaintiff’s deposition remotely or in person. [ECF 22 No.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 EZRA K. WILLIAMS, CDCR #AF-1812, Case No.: 23-cv-0136-BAS-MMP
12 Plaintiff, ORDER: 13 v. (1) GRANTING IN PART 14 PLAINTIFF’S MOTIONS FOR 15 WILLIAM NEWMAN, et al., EXTENSION OF TIME;
16 Defendants. (2) DENYING PLAINTIFF’S 17 MOTION TO APPOINT COUNSEL; AND 18
19 (3) GRANTING DEFENDANT’S EX PARTE MOTION TO TAKE 20 DEPOSITION OF EZRA K. 21 WILLIAMS
22 [ECF Nos. 24, 26, 28, 29, 30, 31] 23 24 25 Plaintiff Ezra K. Williams (“Plaintiff”) has filed a four Motions for Extension of 26 Time (“Motions for Extension of Time”) and a Second Motion to Appoint Counsel 27 (“Second Motion for Appointment of Counsel”). [ECF Nos. 33, 26.] Additionally, 28 Defendants William Newman and Daniel Gallegos (“Defendants”) have filed an Ex Parte 1 Application to Take Deposition of Ezra K. Williams, AR1812, An Incarcerated Person 2 (“Ex Parte Application to Take Plaintiff’s Deposition”). [ECF No. 24.] The Court 3 addresses the Parties’ three motions in turn. 4 I. MOTIONS FOR EXTENSION OF TIME 5 Plaintiff moves for an extension of time to respond to four sets of written discovery, 6 a set of interrogatories and requests for production of documents from both Defendant 7 Newman and Defendant Gallegos, on the ground that he experiences challenges to 8 responding to these discovery requests within the thirty-day deadline due to his work and 9 class schedule as well as his lack of access to a typewriter or word processing software. 10 [ECF Nos. 28, 29, 30, 31.] Plaintiff initially requests thirty-day extensions for Defendants 11 Gallegos and Newman’s respective requests for interrogatories, ECF Nos. 28, 29, and 12 sixty-day extensions for Defendants Gallegos and Newman’s respective requests for 13 production, ECF Nos. 30, 31, that were served on Plaintiff on January 16, 2024. However, 14 Plaintiff later states that he requests until March 16, 2024 to respond to Defendant 15 Newman’s request for interrogatories, April 16, 2024 to respond to Defendant Gallego’s 16 requests for interrogatories, June 16, 2024 to respond to Defendant Newman’s request for 17 production of documents, and August 16, 2024 to respond to Defendant Gallegos’ request 18 for production of documents. [ECF Nos. 28, 29, 30, 31.] 19 Defendants filed a limited opposition to Plaintiff’s Motions, indicating they do not 20 oppose an extension of time but request the Court limit any extension to forty-five to sixty 21 days and to have all written responses due on the same day. [ECF No. 32.] 22 Federal Rule of Civil Procedure (“Rule”) 34(b)(2)(A) provides that the party to 23 whom requests for production of documents are directed must respond in writing within 24 thirty (30) days after being served, and a “shorter or longer time may be stipulated to under 25 Rule 29 or be ordered by the court.” Likewise, Rule 33(b)(2) provides the responding party 26 must serve answers and any objections within thirty (30) days after being served with 27 interrogatories, and “[a] shorter or longer time may be stipulated to under Rule 29 or be 28 ordered by the court.” Having considered Plaintiff’s grounds for the extension, as well as 1 Defendants’ non-opposition, the Court finds a sixty-day (60) extension of time is 2 appropriate at this stage of the proceeding. 3 II. MOTION TO APPOINT COUNSEL 4 “[T]here is no absolute right to counsel in civil proceedings.” Hedges v. Resolution 5 Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994); Palmer v. Valdez, 560 F3d 965, 970 (9th 6 Cir. 2009). Under 20 U.S.C. § 1915(e)(1), district courts have the discretion to appoint 7 counsel for indigent persons under “exceptional circumstances.” Terrell v. Brewer, 935 8 F.2d 1015, 1017 (9th Cir. 1991). “When determining whether ‘exceptional circumstances’ 9 exist, a court may consider ‘the likelihood of success on the merits as well as the ability of 10 the petitioner to articulate his claims pro se in light of the complexity of the legal issues 11 involved.’” Palmer, 560 F.3d at 970 (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th 12 Cir. 1983)). “Neither of these factors is dispositive and both must be viewed together before 13 reaching a decision.’” Terrell, 935 F.2d at 1017 (quoting Wilborn v. Escalderon, 789 F.2d 14 1328, 1331 (9th Cir. 1986)); Agyeman v. Corrections Corp. of Am., 390 F.3d 1101, 1103 15 (9th Cir. 2004); Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990). 16 Plaintiff contends that exceptional circumstances exist to appoint counsel due to his 17 time commitments to tutoring, class, and extracurricular schedules, having to handwrite all 18 his motions and responses, and his inability to litigate pro se a “case involv[ing] complex 19 issues [that] will likely encompass large volumes of discovery and an array of motions, as 20 well as the need to locate, and depose . . . witnesses, and compel discovery.” [ECF No. 26.] 21 Here, the Court does not find such exceptional circumstances at this time. The Court 22 denied Plaintiff’s first request for appointment of counsel, finding that “nothing in 23 Williams’ Complaint suggests he is incapable of articulating the factual basis for his First 24 and Eighth Amendment claims, which appear relatively straightforward,” and that “he has 25 yet to demonstrate—and it is too soon to tell—whether he is likely to succeed on the 26 merits.” [ECF No. 4 at 11–12 (internal quotations and citations omitted).] The Court finds 27 that the circumstances remain substantially the same. Though Plaintiff alleges that the 28 claims are complex, he has not made a showing that his claims are particularly complex or 1 that he is unable to articulate the factual basis of his claims pro se. Plaintiff’s complaint 2 and motions have been articulate and organized and thus far demonstrate that he can 3 sufficiently articulate the factual basis of his claims. Further, Plaintiff has not demonstrated 4 likelihood of success on the merits and likely cannot do so without further factual 5 development. 6 While Plaintiff may not have vast resources or legal training, he is a pro se litigant; 7 as such, his filings are “liberally construed,” and “a pro se complaint, however inartfully 8 pleaded,” is “held to less stringent standards than formal pleadings drafted by lawyers.” 9 Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal citations and quotation marks 10 omitted). The Court recognizes that Plaintiff’s submissions will be subject to this standard, 11 but this does not constitute “exceptional circumstances” for appointment of counsel. 12 Moreover, though the Court sympathizes with Plaintiff’s time constraints, appointment of 13 counsel is not the proper vehicle to address such issues. Further, the Court has already 14 granted Plaintiff additional time to respond to discovery, as set forth above. 15 III. DEFENDANTS’ EX PARTE APPLICATION TO TAKE PLAINTIFF’S 16 DEPOSITION 17 The Court finds that Defendants have satisfied the requirements for leave to depose 18 Plaintiff. 19 Plaintiff is currently in the custody of the California Department of Corrections and 20 Rehabilitation at California Correctional Institution in Tehachapi, California. Defendants 21 request an order allowing them to take Plaintiff’s deposition remotely or in person. [ECF 22 No. 24-1 at 2.] In a declaration in support, Defendant’s attorney Jacqueline Kallberg states 23 that she will serve Plaintiff with reasonable notice once the date and time are scheduled. 24 Under Federal Rules of Civil Procedure 30(a)(2)(B), the deposition of a deponent 25 who is confined in prison may be taken with leave of court. Fed. R. Civ. P. 30(a)(2)(B). 26 Leave must be granted, to the extent consistent with Rule 26(b)(1) and (2). Ms. Kallberg 27 states that the requested deposition will be in compliance with Rule 26(b)(2). Accordingly, 28 1 Court must grant Defendants’ request for leave to take Plaintiff's deposition insofar as 2 ||it complies with Rule 26(b)(1). 3 CONCLUSION 4 Accordingly, the Court ORDERS the following: 5 1. No later than April 19, 2024, Plaintiff shall respond to Defendants’ requests 6 || for interrogatories and requests for production. To the extent either party seeks a reasonable 7 ||extension of time to respond to discovery in this case, the parties must meet and confer to 8 ||see if a stipulation can be reached under Rule 29 prior to requesting court relief. 9 2. The clerk is ORDERED to strike ECF No. 33. Per Civil Local Rule 36.1, 10 || responses to discovery requests must be sent to the requesting the party, not filed with the 11 |} Court. 12 3. The Court DENIES without prejudice Plaintiff's Second Motion to Appoint 13 |] Counsel. [ECF No. 26.] 14 4. The Court GRANTS Defendants’ Ex Parte Application to Take □□□□□□□□□□□ 15 Deposition. [ECF No. 24.] Counsel for Defendants may make arrangements to take 16 || Plaintiff's deposition in compliance with Rule 26(b)(1) and (2) at a date and time 17 ||}convenient to the correctional facility in which Plaintiff is incarcerated and providing 18 || reasonable notice to Plaintiff. 19 IT IS SO ORDERED. 20 Dated: February 23, 2024 21 Wy bale 1. 7 HON. MICHELLE M. PETTIT United States Magistrate Judge 23 24 25 26 27 28