(PC) Rodriguez v. Knight ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 ELADIO RODRIGUEZ, No. 2:19-cv-2552 DB P 11 Plaintiff, 12 v. ORDER 13 G. KNIGHT, et al., 14 Defendants. 15 16 Plaintiff is a state prisoner proceeding pro se with a civil rights action. Plaintiff claims 17 defendants used excessive force against him and denied him due process in violation of his rights 18 under the Eighth and Fourteenth Amendments. Presently before the court is plaintiff’s request for 19 hearing (ECF No. 36) and his motion to appoint counsel (ECF No. 38). For the reasons set forth 20 below, the court will deny the motions without prejudice. 21 I. Request for Hearing 22 On July 8, 2021, the undersigned issued a discovery and scheduling order. (ECF No. 33.) 23 The order indicated that the parties were permitted to conduct discovery until November 12, 24 2021. (Id. at 6.) Plaintiff has now filed a motion asking the court to order defendants to preserve 25 and produce video evidence. (ECF No. 36.) Plaintiff requests “a Rule 27(a)1 hearing to order an 26 27 1 The court notes that Federal Rule of Civil Procedure 27 sets forth the standards for securing deposition testimony. It is not apparent to the court how the standards enumerated in rule 27 28 relate to plaintiff’s motion. 1 immediate viewing and inspection of Mule Creek State Prison Facility ‘A’ exercise facility/yard 2 video footage coverage for the date of June 3, 2019.” (ECF No. 36 at 1-2.) He further requests 3 that the court order the viewing and inspection pursuant to Federal Rule of Civil Procedure 4 34(a)(1) and (2). (Id. at 2.) Plaintiff is concerned that without such order the footage may be 5 destroyed. 6 A. Legal Standards 7 Federal Rule of Civil Procedure 26(b)(1) provides that “[p]arties may obtain discovery 8 regarding any nonprivileged matter that is relevant to any party’s claim or defense and 9 proportional to the needs of the case, considering the importance of the issues at stake in the 10 action.” Information that is within the scope of discovery “need not be admissible in evidence to 11 be discoverable.” Fed. R. Civ. P. 26(b)(1). 12 Pursuant to Rule 34(a) of the Federal Rules of Civil Procedure, “any party may serve on 13 any other party a request to produce and permit the party making the request . . . to inspect and 14 copy any designated documents or electronically stored information . . . which are in the 15 possession, custody, or control of the party upon whom the request is served.” Fed. R. Civ. P. 16 34(a)(1). “[A] party seeking discovery may move for an order compelling an answer, 17 designation, production, or inspection.” Fed. R. Civ. P. 37(a)(3)(B). Thereafter, the court may 18 compel a party to provide further responses to an “evasive or incomplete disclosure, answer, or 19 response.” Fed. R. Civ. P. 37(a)(4). 20 Additionally, parties have a duty to preserve evidence that is relevant to pending litigation. 21 Kronish v. United States, 150 F.3d 112, 126 (2d Cir. 1998). “Once a party knows that litigation is 22 reasonably anticipated, the party owes a duty to the judicial system to ensure preservation of 23 relevant evidence.” Surowiec v. Capital Title Agency, Inc., 790 F. Supp. 2d 997, 1006 (D. Ariz. 24 2011). “The duty to preserve is triggered not only when litigation actually commences, but also 25 extends to the period before litigation when a party should reasonably know that evidence may be 26 relevant to anticipated litigation.” Petit v. Smith, 45 F. Supp. 3d 1099, 1105 (D. Ariz. 2014) 27 (quotation omitted). 28 //// 1 B. Analysis 2 The declaration attached to plaintiff’s motion indicates that he has attempted to obtain 3 video footage of the incident giving rise to the claim since the incident took place. (ECF No. 36 4 at 3.) Additionally, he states that defendants have provided conflicting statements regarding the 5 existence of such footage with some prison officials indicating that it does not exist and others 6 stating the footage is too grainy to produce. (Id.) However, the motion does not state that 7 plaintiff submitted a request for production of the footage pursuant to Federal Rule of Civil 8 Procedure 34. Because it does not appear that plaintiff has submitted a discovery request asking 9 defendants to produce the footage, any order from the court directing production of the footage is 10 premature. 11 Moreover, the defendants have a duty to preserve any video evidence of the incident 12 giving rise to the claim. Peyton v. Kibler, No. 2:21-cv-0719 JAM KJN P, 2021 WL 3206209 at 13 *2 (E.D. Cal. July 29, 2021) (defendants have a legal duty to preserve video evidence relevant to 14 the case). Thus, there is no need to hold a hearing. Plaintiff is advised that before seeking an 15 order from the court compelling production of discovery materials, he should first submit a 16 request to defendants as stated in the court’s July 9, 2021 discovery and scheduling order. (See 17 ECF No. 33 at 6.) Accordingly, plaintiff’s request for a hearing to conduct a viewing and 18 inspection of the requested footage will be denied. 19 II. Motion to Appoint Counsel 20 Plaintiff has also filed a motion to appoint counsel. (ECF No. 38.) In support of his 21 motion, plaintiff argues the court should appoint counsel because he cannot afford counsel, the 22 issues in the case are complex, he “is a layman at law,” and defendants refuse to settle the case. 23 (Id. at 1, 4-8.) 24 The United States Supreme Court has ruled that district courts lack authority to require 25 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 26 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 27 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 28 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). nen ene IEE IIE IS IOI IES OS 1 The test for exceptional circumstances requires the court to evaluate the plaintiff's 2 | likelihood of success on the merits and the ability of the plaintiffto articulate his claims pro se in 3 | light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 4 | 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 5 || common to most prisoners, such as lack of legal education and limited law library access, do not 6 | establish exceptional circumstances that would warrant a request for voluntary assistance of 7 || counsel. 8 In the present case, the court does not find the required exceptional circumstances. 9 | Plaintiff cited nothing more than circumstances common to most inmates in support of his 10 | motion. Additionally, at this stage of the proceedings the court cannot evaluate plaintiffs 11 | likelihood of success on the merits. Accordingly, the court will deny the motion to appoint 12 || counsel without prejudice to its renewal at a later stage of the proceedings. 13 TW. Conclusion 14 For the reasons set forth above, IT IS HEREBY ORDERED that: 15 1. Plaintiff’s request for hearing (ECF No. 36) is denied; and 16 2. Plaintiff’s motion for the appointment of counsel (ECF No. 38) is denied. 17 || Dated: September 9, 2021 18 tend BORAH BARNES 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 || pB:12 DB/DB Prisoner Inbox/Civil Rights/S/rodr2552.req4hrg.31 26 27 28