(PC) Khouanmany v. Alencastre ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 VILAYCHITH KHOUANMANY, Case No. 2:17-cv-01326-TLN-JDP (PC) 12 Plaintiff, ORDER DENYING (1) PLAINTIFF’S MOTIONS TO COMPEL DISCOVERY, 13 v. (2) PLAINTIFF’S MOTION TO FOR APPOINTMENT OF COUNSEL, AND 14 BEN ALENCASTRE, et al., (3) PLAINTIFF’S MOTION FOR AN EXTENSION 15 Defendants. ECF Nos. 174, 175, 179 16 17 Plaintiff is a federal prisoner without counsel alleging claims under Bivens v. Six 18 Unknown Named Agents, 403 U.S. 388 (1971). In addition to renewing her motion to appoint 19 counsel, plaintiff has filed several motions to compel further discovery from defendant Deppe.1 20 Plaintiff’s motion for the appointment of counsel, ECF No. 174, is her eleventh since this 21 suit began. See ECF No. 169 (noting that plaintiff has filed ten motions for the appointment of 22 counsel). As plaintiff has previously been informed, she does not have a constitutional right to 23 appointed counsel in this action, see Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and 24 the court lacks the authority to require an attorney to represent her, see Mallard v. U.S. District 25 Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). The court can request the 26 27 1 Plaintiff also requests copies of several of her recent motions. ECF No. 174. In their opposition to her motions to compel, defendants attest that they have voluntarily mailed plaintiff 28 these documents. ECF No. 177. Accordingly, this request is denied as moot. 1 voluntary assistance of counsel. See 28 U.S.C. § 1915(e)(1) (“The court may request an attorney 2 to represent any person unable to afford counsel”); Rand, 113 F.3d at 1525. However, without a 3 means to compensate counsel, the court will seek volunteer counsel only in exceptional 4 circumstances. In determining whether such circumstances exist, “the district court must evaluate 5 both the likelihood of success on the merits [and] the ability of the [plaintiff] to articulate his 6 claims pro se in light of the complexity of the legal issues involved.” Rand, 113 F.3d at 1525 7 (internal quotation marks and citations omitted). Plaintiff has not demonstrated that these factors 8 weigh in favor of appointing her counsel, and her motion is therefore denied. 9 Plaintiff moves to compel additional responses from defendant Deppe both to her 10 interrogatories and to her requests for production of documents. See ECF Nos. 174, 175, & 179.2 11 She first claims that she has not received defendant Deppe’s responses to her requests for 12 document production. See ECF No. 174. Defendant Deppe attests that he served his responses in 13 January 2022, see ECF No. 177 at 2, and it is apparent from plaintiff’s subsequent motion that she 14 received his responses, see ECF No. 175. Similarly, in ECF Nos. 174, 175, 179, and 182—a 15 reply to defendant’s opposition her untimely third motion to compel—plaintiff claims that Deppe 16 has not served any responses to her interrogatories. However, defendant Deppe attests that he 17 served responses in September 2021, re-served a copy of his responses in January 2022, and in 18 response to plaintiff’s motion has voluntarily served his responses a third time. See ECF No. 177 19 at 2. Plaintiff’s reply, ECF No. 180, acknowledges receipt of defendant Deppe’s interrogatory 20 responses on March 14, 2022—notably contradicting her later claim that she never received 21 interrogatory responses, see ECF No. 182. Accordingly, her claims that defendant Deppe never 22 served responses to her interrogatories or her requests for documents are without merit. 23 In her second motion to compel, ECF No. 175, plaintiff raises numerous objections to the 24 sufficiency of defendant Deppe’s document production. I have reviewed her objections and find 25 2 Plaintiff’s third motion to compel, ECF No. 179, is duplicative of her earlier motions, 26 ECF Nos. 174 & 175, and was filed on March 11, 2022, more than one month after the February 27 3, 2022 deadline to file motions to compel discovery, see ECF No. 176. In light of my finding that plaintiff’s motion is redundant, she has not provided good cause to extend the February filing 28 deadline. Accordingly, I will deny her motion to compel, ECF No. 179. 1 | them similarly meritless. In several instances, defendant Deppe properly objected to producing 2 | documents that were outside of his custody or control, such as plaintiff’s complete Sacramento 3 | County jail records. See ECF No. 177 at 10-19. Further, it is apparent from the record that 4 | Sacramento Sheriff's Department already provided plaintiff's jail records in response to an earlier 5 | subpoena. See ECF No. 54. In other instances, she moves for additional responses to requests 6 | that Deppe had properly objected to as vague, overbroad, unclear, or confusing—for instance, she 7 | requested “any and all ‘NON-Privileged’ information that is available to Deppe and plaintiffs, 8 | including ‘Privileged’ Informations [sic].” ECF No. 177 at 13-15. Defendants have consistently 9 | done more than is required of them to facilitate cooperation throughout the discovery process, 10 | including re-producing and re-serving materials that plaintiff claimed not to have received or to 11 | have lost. They attest that they have provided all relevant documents within their custody and 12 | control, ECF No. 177, and plaintiff has not made an adequate showing to the contrary. I cannot 13 | compel defendants to provide documents that they do not have. 14 For the foregoing reasons, plaintiff's motions to compel, ECF Nos. 174, 175, & 179, are 15 | denied. Discovery is now closed. 16 Accordingly, it is hereby ORDERED that: 17 1. Plaintiff's motions to compel discovery, ECF Nos. 174, 175, & 179, are denied. 18 2. Plaintiff's motion for appointment of counsel, ECF No. 174, is denied. 19 3. Plaintiff’s motion for an extension of time, ECF No. 179, is denied. 20 IT IS SO ORDERED. 22 ( q Sty - Dated: _ July 12, 2022 23 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 25 26 27 28