Winston v. Gipson

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 MYRISS WINSTON, 7 Case No. 20-cv-06470-DMR (PR) Plaintiff, 8 ORDER ADDRESSING PLAINTIFF’S v. PENDING MOTIONS 9 CONNIE GIPSON, et al., 10 Defendants. 11

12 INTRODUCTION 13 Before the court are motions filed by Plaintiff including: (1) his motion to compel 14 discovery and impose sanctions (dkt. 24); and (2) his motion for appointment of counsel (dkt. 25). 15 The court addresses each motion below. 16 DISCUSSION 17 I. MOTION TO COMPEL DISCOVERY AND TO IMPOSE SANCTIONS 18 Plaintiff filed a motion to compel discovery and to impose sanctions, in which he states 19 that he “served requests for interrogatories, admission and production of documents pursuant to 20 Rule 34, Fed. R. Civ. P. as set forth in [his] declaration, [and] defendants failed to answer.” Dkt. 21 24-1 at 1. Defendants oppose plaintiff’s motion because they claim that they “have provided 22 meaningful and substantive responses and objections to [his] written discovery requests in a timely 23 manner.” Dkt. 28 at 2. Plaintiff has not filed a response to defendants’ opposition. 24 It seems that defendants have satisfied plaintiff’s discovery requests. Also, the court notes 25 that during the time frame plaintiff’s motion to compel has been pending, defendants have since 26 filed their motion for summary judgment, which includes declarations and exhibits. Dkt. 29. 27 Accordingly, the court DENIES the pending motion to compel without prejudice to plaintiff 1 to compel. Dkt. 24. 2 Plaintiff also requests that the court sanction defense counsel for discovery violations. 3 However, because the record shows that defendants have attempted to produce the discovery 4 sought by plaintiff, sanctions are inappropriate at this time. See Fed. R. Civ. P. 37(d)(3). Thus, 5 plaintiff’s request for sanctions is DENIED. Dkt. 24. 6 The court reminds the parties that it is not an effective or appropriate use of the court’s 7 limited resources for it to oversee all aspects of discovery. Thus, before filing a motion to compel, 8 the moving party must first attempt to resolve the dispute informally with the opposing party. It is 9 only when the parties are unable to resolve the dispute after making a good faith effort to do so 10 should they seek the court’s intervention. See Fed. R. Civ. P. 37(a)(2)(B); N.D. Cal. Local Rule 11 37-1. Because plaintiff is incarcerated, he is not required to meet and confer with defendants in 12 person. Rather, if plaintiff’s discovery requests are denied and he intends to pursue a motion to 13 compel, he need only send a letter to defendants to that effect, offering them one last opportunity 14 to provide him the sought-after information. The letter should state the specific discovery he 15 seeks, and state the reasons that plaintiff believes he is entitled to such discovery. 16 The court further notes that the deadline for plaintiff’s opposition to defendants’ motion for 17 summary judgment is September 19, 2022. At this time, it seems that the discovery issues have 18 been resolved and plaintiff may not need an extension of time to file his opposition. Thus, the 19 parties are directed to abide by the current briefing schedule outlined in the court’s order dated 20 July 5, 2022. 21 II. MOTION FOR APPOINTMENT OF COUNSEL 22 Plaintiff has requested that counsel be appointed to represent him in this action. Dkt. 25. 23 A district court has the discretion under 28 U.S.C. §1915(e)(1) to designate counsel to represent an 24 indigent civil litigant in exceptional circumstances. See Wilborn v. Escalderon, 789 F.2d 1328, 25 1331 (9th Cir. 1986). This requires an evaluation of both the likelihood of success on the merits 26 and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal 27 issues involved. See id. Neither of these factors is dispositive and both must be viewed together 1 requiring the appointment of counsel are not evident at this time. His request for appointment of 2 counsel is DENIED. Dkt. 25. 3 CONCLUSION 4 For the reasons outlined above, the court orders as follows: 5 1. Plaintiff’s motion to compel discovery and to impose sanctions is DENIED. Dkt. 6 24. 7 2. Plaintiff’s request for appointment of counsel is DENIED. Dkt. 25. 8 3. The Clerk of the Court shall note on the docket that plaintiff’s opposition to 9 defendants’ motion for summary judgment is due on September 19, 2022. Defendants shall file a 10 reply brief no later than fourteen (14) days after plaintiff’s opposition is filed. Absent further 11 order, the motion will be deemed submitted as of the date the reply brief is due without a hearing. 12 Once the motion for summary judgment is submitted, the court will resolve that motion in a 13 separate written Order. 14 4. This Order terminates Docket Nos. 24 and 25. 15 IT IS SO ORDERED. 16 Dated: 8/24/2022 17 ______________________________________ DONNA M. RYU 18 United States Magistrate Judge 19 20 21 22 23 24 25 26 27