Tolbert v. Colley ( 2024 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOEL TOLBERT, Case No. 22-cv-02026-JSC 8 Plaintiff, ORDER OF SERVICE ON UNSERVED 9 DEFENDANT; GRANTING MOTION v. TO WITHDRAW; DENYING 10 MOTIONS TO STRIKE AND FOR ANTIOCH POLICE DEPARTMENT, et al., APPOINTMENT OF COUNSEL; 11 INSTRUCTIONS TO CLERK 12 Defendants. Re: Dkt. Nos. 105, 121, 123 13 14 INTRODUCTION 15 This is a civil rights action filed by a California prisoner proceeding without an attorney. 16 Defendants are the Antioch Police Department (“APD”), APD Chief Allan Cantando, APD 17 Officers James Colley and James Perkinson, and the Contra Costa County Detention Health 18 Service (“CCCDHS”). The operative complaint is the second amended complaint. (ECF No. 19 42.)1 All Defendants except CCCDHS have been served and appeared. Plaintiff has filed (1) a 20 motion to withdraw his motion to compel, (2) a motion to strike the served Defendants’ reply to 21 his opposition to their motion for summary judgment, and (3) a motion for appointment of 22 counsel.2 (ECF Nos. 81, 110, 121, 123.) Service upon CCCDHS is ordered, and these motions 23 are addressed, below. 24 DISCUSSION 25 1. Service on Unserved Defendant 26 27 1 Plaintiff filed another copy of the second amended complaint with the exhibits to the opposition 1 Defendant CCCDHS was ordered served (ECF No. 97), but the Clerk has not issued a 2 summons. Accordingly, the Clerk shall issue a summons, and the United States Marshal shall 3 serve, without prepayment of fees, the summons, a copy of the second amended complaint (ECF 4 No. 42) with attachments, and copies of this order and the orders of service (ECF Nos. 9, 97) on: 5 Contra Costa County Detention Health Services 100 Ward Street 6 Martinez, California, 94553. 7 Defendant CCCDHS shall file an answer in accordance with the Federal Rules of Civil 8 Procedure. 9 To expedite the resolution of this case: 10 a. No later than February 7, 2025, Defendant CCCDHS shall file a motion 11 for summary judgment or other dispositive motion. The motion shall be supported by adequate 12 factual documentation and shall conform in all respects to Federal Rule of Civil Procedure 56, and 13 shall include as exhibits all records and incident reports stemming from the events at issue. If 14 Defendant CCCDHS is of the opinion that this case cannot be resolved by summary judgment, he 15 shall so inform the Court prior to the date the summary judgment motion is due. All papers filed 16 with the Court shall be promptly served on Plaintiff. 17 b. At the time the dispositive motion is served, Defendant CCCDHS shall also 18 serve, on a separate paper, the appropriate notice required by Rand v. Rowland, 154 F.3d 952, 953- 19 954 (9th Cir. 1998) (en banc). See Woods v. Carey, 684 F.3d 934, 940-941 (9th Cir. 2012). 20 c. Plaintiff's opposition to the dispositive motion, if any, shall be filed with the 21 Court and served upon Defendant CCCDHS no later than March 7, 2025, is filed. Plaintiff must 22 read the attached page headed “NOTICE -- WARNING,” which is provided to him pursuant to 23 Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc). 24 d. Defendant CCCDHS shall file a reply brief no later than 14 days after the 25 opposition is filed. 26 e. The motion shall be deemed submitted as of the date the reply brief is due. 27 No hearing will be held on the motion unless the Court so orders at a later date. 1 2. Motions 2 a. Motion to Withdraw 3 Good cause appearing, and in light of Defendants’ non-opposition, Plaintiff’s motion to 4 withdraw his motion to compel (ECF No. 105) is GRANTED. 5 b. Motion to Strike Reply 6 Plaintiff has filed a motion to “strike” Defendants’ reply to his opposition to their motion 7 for summary judgment. (ECF No. 121.) Plaintiff argues the reply should be stricken under Rule 8 12(f) because it relies upon “tampered” evidence and “false contentions.” (Id. at 3-6.) 9 Rule 12(f) provides: 10 (f) Motion to Strike. The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or 11 scandalous matter. The court may act: (1) on its own; or (2) on motion made by a party either before responding to the pleading or, 12 if a response is not allowed, within 21 days after being served with the pleading. 13 Fed. R. Civ. P. 12(f). The reply regarding Defendants’ motion for summary judgment is not a 14 “pleading” or a portion of a pleading. See Fed. R. Civ. P. 7(a) (defining “pleading” as various 15 complaints, answers, and – if ordered by the court – a reply to an answer). Therefore, the reply 16 cannot be stricken under Rule 12(f) or on any other grounds of which the Court is aware. 17 Accordingly, the motion to strike is DENIED. 18 To the extent Plaintiff seeks to dispute the arguments in the reply, Civil Local Rule 7-3(d) 19 provides: 20 (d) Supplementary Material. Once a reply is filed, no additional 21 memoranda, papers or letters may be filed without prior Court approval, except as follows: 22 (1) Objection to Reply Evidence. If new evidence has been 23 submitted in the reply, the opposing party may file and serve an Objection to Reply Evidence, which may not exceed 5 pages of text, 24 stating its objections to the new evidence, which may not include further argument on the motion. The Objection to Reply Evidence 25 must be filed and served not more than 7 days after the reply was filed. Fed. R. Civ. P. 6(d), which extends deadlines that are tied to 26 service (as opposed to filing), does not apply and thus does not extend this deadline. 27 the opposition or reply was filed by filing and serving a Statement of 1 Recent Decision. Such Statement shall contain a citation to and provide a copy of the new opinion without argument. 2 Civ. L.R. 7-3(d). Plaintiff has not obtained leave of court to file supplementary material, nor does 3 he cite a “relevant judicial opinion published after the date the opposition or reply was filed.” Id. 4 To the extent the motion addresses “new evidence . . . submitted in the reply,” the Court will 5 consider such arguments as “objections to reply evidence” under Civil Local Rule 7-3(d)(1) when 6 it reviews the briefs on Defendants’ motion for summary judgment. 7 c. Motion for Appointment of Counsel 8 Plaintiff has filed a motion for appointment of counsel. (ECF No. 123.) There is no right 9 to counsel in a civil case such as this. See Lassiter v. Dep't of Social Services, 452 U.S. 18, 25 10 (1981). The decision to request counsel to represent an indigent litigant under § 1915 is within 11 “the sound discretion of the trial court and is granted only in exceptional circumstances.” Franklin 12 v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). Plaintiff has not asserted exceptional 13 circumstances. Plaintiff alleges he has “limited access” to a law library, copy machine, and 14 subpoenas (ECF No. 121 at 1-2), but these allegations do not explain what claims, arguments, or 15 evidence he has been unable to present. He has litigated this case vigorously, including filing 16 numerous motions, amending his pleadings twice, submitting hundreds of pages of exhibits, and 17 obtaining subpoenas for documents on several occasions. He has received and may continue to 18 request extensions of any deadlines provided that he explain the circumstances that require the 19 extension, including limited law library access, copies, or other materials. Plaintiff’s arguments 20 about being unable to conduct a trial by himself effectively are not ripe as this case is not ready for 21 trial. Should a trial become necessary, the Court will on its own initiative reconsider Plaintiff’s 22 request for appointment of counsel. Plaintiff’s argument that Defendants have on occasion had 23 difficulty reading his filings are unpersuasive; if the Court cannot read anything Plaintiff submits, 24 he will be given an opportunity for correction. At least at this stage, Plaintiff has been able to 25 present his claims such that the interests of justice necessitate referral for location of pro bono 26 counsel to assist him. 27 Plaintiff’s motion for appointment of counsel is DENIED. Should referral for location of 1 pro bono counsel become necessary at a later time, the Court will issue a referral order on its own; 2 Plaintiff need and shall not request appointment of counsel in this Court again. 3 CONCLUSION 4 For the reasons discussed, service upon CCCDHS is ordered. Plaintiff’s motion to 5 withdraw is GRANTED, and his motions to strike and for appointment of counsel are DENIED. 6 This order resolves docket numbers 105, 121, 123. 7 IT IS SO ORDERED. 8 Dated: November 15, 2024 9 10 JACQUELINE SCOTT CORLEY 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 NOTICE -- WARNING (SUMMARY JUDGMENT) 2 If Defendants move for summary judgment, they are seeking to have your case dismissed. 3 A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if 4 granted, end your case. 5 Rule 56 tells you what you must do in order to oppose a motion for summary judgment. 6 Generally, summary judgment must be granted when there is no genuine issue of material fact-- 7 that is, if there is no real dispute about any fact that would affect the result of your case, the party 8 who asked for summary judgment is entitled to judgment as a matter of law, which will end your case. When a party you are suing makes a motion for summary judgment that is properly 9 supported by declarations (or other sworn testimony), you cannot simply rely on what your 10 complaint says. Instead, you must set out specific facts in declarations, depositions, answers to 11 interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts 12 shown in Defendant's declarations and documents and show that there is a genuine issue of 13 material fact for trial. If you do not submit your own evidence in opposition, summary judgment, 14 if appropriate, may be entered against you. If summary judgment is granted, your case will be 15 dismissed and there will be no trial. 16 17 18 19 20 21 22 23 24 25 26 27