Williams v. Rucker

Opinion

1 2 3 4 5 6 7 10 11 RICKY L. WILLIAMS, Case No.: 3:19-cv-00468-LAB-AHG 12 Plaintiff, ORDER DENYING PLAINTIFF’S SECOND MOTION TO APPOINT 13 v. COUNSEL 14 RUCKER, et al., [ECF No. 25] 15 Defendants. 16

17 Before the Court is Plaintiff Ricky L. Williams’s (“Plaintiff”) letter to Judge 18 Goddard, which the Court construes as a Second Motion to Appoint Counsel. ECF No. 25. 19 For the reasons that follow, the Motion is DENIED. 20 I. BACKGROUND 21 Plaintiff, proceeding pro se and in forma pauperis (“IFP”), filed this action on March 22 11, 2019, bringing claims pursuant to 42 U.S.C. § 1983 against multiple Correctional 23 Officers in the Salinas Valley State Prison where Plaintiff was previously incarcerated.1 24 ECF No. 1. Plaintiff alleges Defendants violated his civil rights under the Eighth and 25 Fourteenth Amendments by pepper spraying him during a physical altercation with another 26 27 28 1 inmate, failing to protect him from the other inmate before the altercation broke out, and 2 using excessive force afterwards including slamming Plaintiff into his wheelchair and 3 choking and punching Plaintiff while forcibly removing him from the area. Id. at 2-6. 4 Plaintiff also alleges that on the following day, another Correctional Officer used excessive 5 force, including choking, to force Plaintiff into a transportation van. Id. at 7-8. Plaintiff 6 further contends he faced retaliation for filing grievances against Defendants for use of 7 excessive force, including a ten-day period of confinement and loss of television rights. Id. 8 at 13. Finally, Plaintiff brings claims against various supervising officers for failure to 9 properly train and/or supervise their subordinates, leading to the alleged violations. Id. at 10 9-10. 11 The Court granted Plaintiff’s IFP Motion on April 26, 2019. ECF No. 6. After 12 waiving service, Defendants filed an Answer on August 12, 2019. ECF No. 14. On August 13 27, 2019, the Court issued a Scheduling Order governing the pretrial deadlines in this case, 14 including a fact discovery cut-off date of December 16, 2019. ECF No. 15. Plaintiff moved 15 for appointment of counsel on September 17, 2019, which the Court denied. ECF Nos. 19, 16 20. In his first motion to appoint counsel, Plaintiff explained that he sought counsel because 17 (1) he could not afford to hire a lawyer; (2) his incarceration limits his ability to litigate his 18 case; (3) the issues in the case are complex, particularly in light of his legal inexperience; 19 (4) trial will involve conflicting testimony; and (5) Plaintiff has been unable to obtain 20 counsel on his own. See ECF No. 19. In denying the Motion, the Court explained that these 21 reasons did not amount to “exceptional circumstances” warranting appointment of counsel. 22 See ECF No. 20. 23 On September 18, 2019, this case was transferred to the undersigned from the 24 previously assigned Magistrate Judge. ECF No. 21. On October 10, 2019, the Court 25 received a letter from Plaintiff written directly to the undersigned Judge. ECF No. 24. In 26 the letter, Plaintiff renewed his request for appointment of counsel. Although ex parte 27 letters to the Court are not permitted, “[c]ourts in [the Ninth Circuit] have an obligation to 28 give a liberal construction to the filings of pro se litigants, especially when they are civil 1 rights claims by inmates.” Blaisdell v. Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013) 2 (citation omitted). “This rule relieves pro se litigants from the strict application of 3 procedural rules and demands that courts not hold missing or inaccurate legal terminology 4 or muddled draftsmanship against them.” Id. In keeping with this obligation, and in 5 recognition of the fact that Plaintiff’s letter contained a renewed request for appointment 6 of counsel, the Court excused Plaintiff’s improper ex parte letter to the Judge assigned to 7 his case, construed the filing liberally, and permitted it to be filed as a Second Motion to 8 Appoint Counsel. ECF Nos. 24, 25.2 10 To the extent Plaintiff’s Second Motion to Appoint Counsel merely seeks 11 reconsideration of the arguments Plaintiff raised in his prior Motion for Appointment of 12 Counsel (ECF No. 19), the Court finds it without merit. Reconsideration is an 13 “extraordinary remedy, to be used sparingly.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th 14 Cir. 2003); Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). A 15 motion for reconsideration should not be granted, absent highly unusual circumstances, 16 unless the court is “presented with newly discovered evidence, committed clear error, or if 17 there is an intervening change in the controlling law.” Marlyn Nutraceuticals, Inc. v. Mucos 18 Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (citation omitted); see also CivLR 19 7.1(i)(1) (stating that the party seeking relief must present “what new or different facts and 20

21 2 Plaintiff’s letter also evinces a misunderstanding about the nature of Notices of Document 22 Discrepancies, which the Court finds necessary to correct. Consistent with the obligation 23 of liberal construction of pro se filings, the Court has accepted every filing Plaintiff has submitted to the Court. The Notices of Document Discrepancies the Court has filed and 24 provided to Plaintiff up to this point merely reflect minor procedural deficiencies in his 25 filings and briefly explain what they are. If the Court were to reject or deny a filing due to a discrepancy, the Notice of Document Discrepancy would indicate that the filing was 26 “REJECTED” at the bottom of the page. Rather than rejecting Plaintiff’s filings, the Court 27 has ordered all of them to be filed nunc pro tunc to date received—in other words, to be filed exactly as written and back-dated to the date when the Court received them. 28 1 circumstances are claimed to exist which did not exist, or were not shown, upon such prior 2 application”). “A motion for reconsideration may not be used to raise arguments or present 3 evidence for the first time when they could reasonably have been raised earlier in the 4 litigation.” Marlyn Nutraceuticals, 571 F.3d at 880 (citation and internal quotation marks 5 omitted); United States v. Westlands Water District, 134 F. Supp. 2d 1111, 1131 (E.D. Cal. 6 2001) (stating that “a motion for reconsideration is not a vehicle to reargue the motion”). 7 Therefore, a party seeking reconsideration “must show more than a disagreement 8 with the Court’s decision, and recapitulation . . . of that which was already considered by 9 the Court in rendering its decision.” Westlands Water District, 134 F. Supp. 2d at 1131; 10 see also Coleman v. Evergreen Pub. Sch., No. C18-556-RBL, 2018 WL 5886452, at *1 11 (W.D. Wash. Nov. 9, 2018) (stating that a motion for reconsideration is not “intended to 12 provide litigants with a second bite at the apple. . . . Mere disagreement with a previous 13 order is an insufficient basis for reconsideration[.]”). 14 Consequently, the Court will not address grounds to appoint counsel that it already 15 addressed in its previous Order denying appointment of counsel (ECF No. 20). However, 16 Plaintiff does raise one new basis for appointment of counsel in his letter. Specifically, 17 Plaintiff seeks counsel to represent him during his upcoming deposition scheduled for 18 October 28, 2019 “so [he] won’t incriminate [himself].” ECF No. 25 at 4. 19 Defendant is authorized to take Plaintiff’s deposition pursuant to Fed. R. Civ. P. 20 30(a)(2)(B). Plaintiff does not explain how his fear of self-incrimination during the 21 deposition constitutes an “exceptional circumstance” requiring appointment of counsel. As 22 explained in the Court’s prior order, the Court may appoint counsel to represent an indigent 23 litigant under 28 U.S.C. § 1915 only in “exceptional circumstances,” and the factors the 24 Court evaluates in determining whether such circumstances exist are (1) the likelihood of 25 Plaintiff’s success on the merits, and (2) the ability of the plaintiff to articulate his claims 26 pro se in light of the complexity of the legal issues involved. ECF No. 20 at 1-2 (citing 27 Palmer v. Valdez, 560 F.3d 965, 960 (9th Cir. 2009)). See also Moore v. Stepp, No. C 11- 28 5395-CW-PR, 2013 WL 1832640, at *8 (N.D. Cal. May 1, 2013) (citing Rand v. Rowland, 1 113 F.3d 1520, 1525 (9th Cir. 1997)). Plaintiff’s concern about self-incrimination does not 2 bear on either relevant factor. Therefore, Plaintiff’s Second Motion to Appoint Counsel is 4 Nonetheless, the Court considers Plaintiff’s self-incrimination concern important to 5 address for the benefit of both sides. During his deposition, Plaintiff is required to answer 6 appropriate questions and, if he has an objection to any question, the proper procedure is 7 to note the objection for the record but to answer the question despite the objection. See 8 Fed. R. Civ. P. 30(c)(2) (“An objection at the time of the examination . . . must be noted 9 on the record, but the examination still proceeds; the testimony is taken subject to the 10 objection.”). However, there are limits to the rule that a deponent must answer every 11 question even if he has an objection. Relevant to Plaintiff’s concern here, Rule 30 permits 12 a deponent not to answer a question “when necessary to preserve a privilege[.]” Id. 13 Plaintiff’s privilege against self-incrimination under the Fifth Amendment qualifies as a 14 legitimate basis to refuse to answer a deposition question altogether. See Campbell v. 15 Gerrans, 592 F.2d 1054, 1057 (9th Cir. 1979) (“The principle of Fifth Amendment 16 protection has been construed to permit the privilege to be asserted in any proceeding, civil 17 or criminal, administrative or judicial, investigatory or adjudicatory.”) (quotation omitted). 18 In its Scheduling Order, the Court made clear that, notwithstanding its warning that 19 Plaintiff may face sanctions under Rule 37 for refusing to answer appropriate questions, 20 “[o]bjections made in good faith in accordance with governing rules are permitted.” ECF 21 No. 15 at 2. 22 Evidence that is protected by Plaintiff’s Fifth Amendment privilege against self- 23 incrimination includes not only information that may directly lead to criminal conviction, 24 but also “information which would furnish a link in the chain of evidence that could lead 25 to prosecution, as well as evidence which an individual reasonably believes could be used 26 against him in a criminal prosecution.” Maness v. Myers, 419 U.S. 449, 461 (1975). 27 Therefore, if Plaintiff reasonably believes during his deposition that defense counsel has 28 asked a question eliciting information that is protected by this privilege, he may object on 1 that basis and refuse to answer. However, Plaintiff is warned that if he wishes “to use the 2 shield of self-incrimination against any interrogation whatsoever regarding [his] claims,” 3 he will “have to forego the right to prosecute the actions.” Lyons v. Johnson, 415 F.2d 540, 4 541 (9th Cir. 1969). 5 In other words, if Plaintiff invokes the privilege against self-incrimination in 6 response to most or all of the deposition questions, or otherwise effectively makes it 7 impossible for Defendants to inquire into Plaintiff’s claims, such conduct may ultimately 8 require dismissal of his case under Rule 41. “If the plaintiff fails to prosecute . . ., a 9 defendant may move to dismiss the action or any claim against it.” Fed. R. Civ. P. 41(b). 10 “[F]ailure to prosecute diligently is sufficient to justify a dismissal, even in the absence of 11 a showing of actual prejudice to the defendant from the failure.” Anderson v. Air West, 12 Inc., 542 F.2d 522, 524 (9th Cir. 1976). Plaintiff is reminded that he has brought this case, 13 and that he cannot prosecute it without developing his claims factually. “The scales of 14 justice would hardly remain equal . . . if a party can assert a claim against another and then 15 be able to block all discovery attempts against him by asserting a Fifth Amendment 16 privilege to any interrogation whatsoever upon his claim.” Lyons, 415 F.2d at 542. 17 Thus, while Plaintiff is entitled to invoke his privilege against self-incrimination, he 18 is cautioned that if he improperly invokes the privilege or otherwise uses it to prevent 19 Defendants from developing fact discovery in this case, Defendants would likely be 20 justified in seeking dismissal for failure to prosecute under Rule 41. Plaintiff is advised to 21 review Rule 30 of the Federal Rules of Civil Procedure—and in particular subparts 30(c) 22 and 30(d)—prior to his deposition to ensure he understands the nature of a deposition 23 generally as well as the specific limitations on his ability to object to questions. 24 \ 25 \ 26 \ 27 \ 28 \ 1 Hil. CONCLUSION 2 For the reasons explained above, Plaintiff's Second Motion to Appoint Counsel 3 || (ECF No. 25) is DENIED. 5 || Dated: October 18, 2019 . JpwornH. Xho Honorable Allison H. Goddard 7 United States Magistrate Judge 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28