(PC) Parks v. Abdur-Rahman ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH WAYNE PARKS, Case No. 2:19-cv-01589-KJM-JDP (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTIONS TO COMPEL DISCOVERY, TO PRECLUDE 13 v. USE OF HIS DEPOSITION TRANSCRIPT, AND FOR APPOINTMENT OF COUNSEL. 14 SALAHUDDIN ABDUR-RAHMAN, et al., ECF Nos. 46, 47, 56, 60, 61, 64, 71 15 Defendants. ORDER GRANTING IN PART 16 DEFENDANTS’ MOTION FOR AN EXTENSION OF TIME 17 ECF No. 76 18 19 Plaintiff is a state prisoner proceeding without counsel with claims under 42 U.S.C. 20 § 1983. Several motions are currently pending before the court, eight of which are addressed 21 herein. 22 First, plaintiff has filed three separate motions seeking to compel the California 23 Department of Correction and Rehabilitation (“CDCR”) to comply with his requests to produce 24 documents related to his administrative appeals. ECF Nos. 46, 60, 71. Plaintiff states that he has 25 submitted several requests for these documents, but CDCR has refused to produce them. Id. 26 Plaintiff previously filed a similar motion seeking to compel CDCR to provide the same 27 documents. See ECF No. 43. As previously explained to plaintiff, a motion to compel is 28 appropriate when a party to the action fails to respond or inadequately responds to a request to 1 produce discovery. See Fed. R. Civ. P. 37(a)(3)(B)(iv). It is not the proper vehicle for obtaining 2 discovery from a non-party, such as CDCR. To obtain discovery from a non-party, plaintiff must 3 seek issuance of a subpoena and demonstrate that the information sought cannot be obtained from 4 defendants through discovery. See Fed. R. Civ. P. 45(d)(1). Plaintiff has not requested that the 5 Clerk of Court issue him a blank subpoena. See Fed. R. Civ. P. 45(a)(5). Neither has he 6 demonstrated that the documents he seeks from CDCR could not have been obtained from 7 defendants or that they are necessary to prosecute this action.1 See Fed. R. Civ. P. 45(d)(1) 8 (requiring the court to ensure that the party serving the subpoena has taken reasonable steps to 9 avoid imposing an undue burden or expense on the person or entity to be served with the 10 subpoena). Plaintiff’s motions to compel are therefore denied. 11 Second, plaintiff has filed three separate motions that seek to preclude defendants from 12 relying on the transcript from his deposition. ECF Nos. 56, 61, 64. Plaintiff states that during his 13 deposition, which was conducted remotely by video, there were multiple technical issues with the 14 video and audio feeds. Id. He appears to argue that these technical issues render the transcript of 15 his deposition unreliable. Id. He also complains that he was not timely provided a copy of the 16 deposition transcript. ECF No. 61 at 3-4. 17 While it is unfortunate that completing plaintiff’s deposition proved challenging due to 18 video and audio problems, those technical issues do not automatically render the deposition 19 transcript unreliable or inaccurate. Significantly, plaintiff has not identified any specific error or 20 incorrect statement in his deposition transcript. And while plaintiff may not initially have been 21 given a copy of his deposition transcript, defendants provided him a copy at the time they filed 22 their motion for summary judgment. ECF No. 66. Plaintiff has since filed five separate 23 24 1 As best I can discern, plaintiff is seeking copies of his administrative appeals to establish that he exhausted his administrative remedies. See ECF No. 46 at 1 (arguing that without the 25 documents, this action could “easily [be] dismissed for lack of exhausted administrative remedies”). Although defendants have filed a motion for summary judgment, they do not argue 26 that plaintiff’s claims should be dismissed for failure to exhaust administrative remedies. Rather, 27 they argue that plaintiff’s claims are untimely and that the evidence establishes that defendants were not deliberately indifferent to plaintiff’s medical needs. Accordingly, there is no need for 28 plaintiff to submit evidence showing that he exhausted his administrative remedies. 1 documents in opposition to defendants’ motion, none of which identify any identify errors in the 2 transcript. See ECF Nos. 67-70, 80. Absent a showing that the transcript contains an inaccuracy 3 or that plaintiff was prejudiced by not being able to timely review the transcript, there is no basis 4 from prohibiting its use in this case. See Hollis v. Sloan, No. 2:08-cv-2674 GEB KJN P, 2012 5 WL 5304756, *3 (E.D. Cal. Oct. 25, 2012 (declining to strike the plaintiff’s deposition transcript 6 where plaintiff failed to show that he was prejudiced by not being able to timely review his 7 deposition transcript). Accordingly, plaintiff’s motions to preclude the use of his deposition 8 transcript are denied. 9 Third, plaintiff has filed his fourth motion seeking appointment of counsel. ECF No. 47. 10 As previously explained to plaintiff, he does not have a constitutional right to appointed counsel 11 in this action, see Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court lacks the 12 authority to require an attorney to represent plaintiff, see Mallard v. U.S. District Court for the 13 Southern District of Iowa, 490 U.S. 296, 298 (1989). The court may request the voluntary 14 assistance of counsel. See 28 U.S.C. § 1915(e)(1) (“The court may request an attorney to 15 represent any person unable to afford counsel”); Rand, 113 F.3d at 1525. However, without a 16 means to compensate counsel, the court will seek volunteer counsel only in exceptional 17 circumstances. In determining whether such circumstances exist, “the district court must evaluate 18 both the likelihood of success on the merits [and] the ability of the [plaintiff] to articulate his 19 claims pro se in light of the complexity of the legal issues involved.” Rand, 113 F.3d at 1525 20 (internal quotation marks and citations omitted). 21 Plaintiff has demonstrated an adequate ability to represent his interests in this action. 22 Further, he has not shown that he is likely to succeed on the merits. For these reasons, his motion 23 for appointment of counsel, ECF No. 47, is denied. 24 Lastly, defendants have filed a motion for an extension of time to file a reply to plaintiff’s 25 opposition to their motion for summary judgment. ECF No. 76. Good cause appearing, 26 defendants’ motion is granted in part. Defendants are granted until August 10, 2021 to file a 27 reply brief. No further extension will be granted absent a showing of extraordinary cause. 28 1 Accordingly, it is hereby ORDERED that: 2 1. Plaintiff's motions to compel CDCR to produce documents—ECF Nos. 46, 60, 71— 3 are denied. 4 2. Plaintiffs motions to preclude the use of his deposition transcript in this action—ECF 5 | Nos. 56, 61, 64—are denied. 6 3. Plaintiff's motion for appointment of council, ECF No. 47, is denied. 7 4. Defendants’ motion for an extension of time to file a reply to plaintiff's opposition to 8 | their motion for summary judgment, ECF No. 76, is granted in part. 9 5. Defendants are granted until August 10, 2021 to file their reply brief. 10 6. No further extensions of time will be granted absent a showing of extraordinary cause. 11 IT IS SO ORDERED. 13 ( 1 Ow — Dated: _ July 30, 2021 14 JEREMY D. PETERSON 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28