United States District Court, W.D. Washington, Tacoma
CHARLES V. REED, Plaintiff,
RICHARD MORGAN, G. STEVEN HAMMOND, LARA STRICK, ROB WEBER, MARGARET GILBERT, Defendants.
W. Christel United States Magistrate Judge
District Court has referred this 42 U.S.C. § 1983 action
to United States Magistrate Judge David W. Christel.
Presently before the Court is Plaintiff Charles V. Reed's
“Motion for Order to Compel Discovery, and to Find
Defendants Non-responsive Admissions as Admitted”
(“Motion to Compel”) and “Second Request on
Motion for the Appointment of Counsel, and to Appoint Expert
Witness” (“Motion for Counsel”). Dkt. 32,
Court concludes Plaintiff failed to timely serve his
interrogatories. Further, Plaintiff's requests for
admissions are unduly burdensome. Therefore, Plaintiff's
Motion to Compel (Dkt. 32) is denied. The Court also finds
Plaintiff has not shown the appointment of counsel or an
expert witness is necessary at this time. Accordingly, the
Motion for Counsel (Dkt. 34) is denied.
Motion to Compel (Dkt. 32)
filed the Motion to Compel on August 3, 2017, requesting the
Court order Defendants to respond to his requests for
admissions and interrogatories. Dkt. 32.
may obtain discovery regarding any nonprivileged information
that is relevant to any claim or defense in his or her case.
Fed.R.Civ.P. 26(b)(1). Once the party seeking discovery has
established the request meets this relevancy requirement,
“the party opposing discovery has the burden of showing
that the discovery should be prohibited, and the burden of
clarifying, explaining or supporting its objections.”
Bryant v. Ochoa, 2009 WL 1390794, at *1 (S.D. Cal.
May 14, 2009). When a party believes the responses to his
requests are incomplete, or contain unfounded objections, he
may move the court for an order compelling disclosure.
Fed.R.Civ.P. 37. The movant must show he conferred, or made a
good faith effort to confer, with the party opposing
disclosure before seeking court intervention. Id.
states he served requests for admission on June 22, 2017 and
requests for interrogatories on June 25, 2017. Dkt. 32.
Defendants contend the discovery requests were untimely. Dkt.
this Court's Mandatory Pretrial Discovery and Scheduling
Order Pursuant to Amended General Order 09-16, all discovery
had to be completed by July 24, 2017. Dkt. 22. This
“discovery deadline represents the latest date upon
which discovery responses may be due and accordingly, any
written discovery requests [must have been] served
sufficiently in advance of this date to ensure compliance
with this deadline.” Id. at p. 6. Further, for
discovery to be timely, a party must serve discovery at least
30 days prior to the discovery deadline in order to allow the
other party sufficient time to respond. See Fed. R.
Civ. P. 33(b)(2), 36(a)(3). If the discovery requests are
served by mailing, the party serving discovery must also
allow for an additional three days. See Fed. R. Civ.
P. 5(b)(2)(C), 6(a) and (d).
Plaintiff served his discovery requests by mail, Plaintiff
was required to serve the discovery requests at least 33 days
prior to the discovery deadline to allow Defendants time to
answer. The discovery period closed on July 24, 2017. Dkt.
22. Plaintiff signed - effectively mailing - his requests of
admissions on June 22, 2017 and interrogatories on June 25,
2017. Dkt. 32. Thus, Defendants' responses to
Plaintiff's requests for admissions were due on July 25,
2017 and their responses to Plaintiff's interrogatories
were due on July 28, 2017. As Defendants' responses were
due after July 24, 2017, Plaintiff did not allow adequate
time for Defendants to respond to the discovery requests
prior to the close of discovery. Therefore, Plaintiff's
discovery requests were untimely and the Court declines to
compel Defendants to respond. Accordingly, the Motion to
Compel (Dkt. 32) is denied.
Court, however, finds the interests of justice dictate that
the parties should be allowed to serve additional discovery.
See Oakes v. Halvorsen Marine Ltd., 179 F.R.D. 281,
283 (C.D. Cal. 1998) (“the purpose of discovery is to
remove surprise from trial preparation so the parties can
obtain evidence necessary to evaluate and resolve their
dispute”). Therefore, the Court will allow the parties
to serve 20 requests for admissions, 10 interrogatories, and
5 requests for production pursuant to the deadlines provided
below. See infra, Section III.
Motion for Counsel (Dkt. 34)
February 23, 2017, the Court denied Plaintiff's requests
for court-appointed counsel and a court-appointed expert
witness. Dkt. 18. Plaintiff has now filed a second Motion for
Counsel, again requesting court-appointed counsel and a
court-appointed expert witness. Dkt. 34.
constitutional right to appointed counsel exists in a §
1983 action. Storseth v. Spellman, 654 F.2d 1349,
1353 (9th Cir. 1981); see United States v. $292, 888.04
in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995)
(“[a]ppointment of counsel under this section is
discretionary, not mandatory”). However, in
“exceptional circumstances, ” a district court
may appoint counsel for indigent civil litigants pursuant to
28 U.S.C. § 1915(e)(1) (formerly 28 U.S.C. §
1915(d)). Rand v. Roland, 113F.3d 1520, 1525 (9th
Cir. 1997), overruled on other grounds, 154 F.3d 952
(9th Cir. 1998). To decide whether exceptional circumstances
exist, the Court must evaluate both “the likelihood of
success on the merits [and] the ability of the [plaintiff] to
articulate his claims pro se in light of the
complexity of the legal issues involved.” Wilborn
v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)
(quoting Weygandt v. Look, 718 F.2d 952, 954 (9th
Cir. 1983)). A plaintiff must plead facts showing he has an
insufficient grasp of his case or the legal issues involved
and an inadequate ability to articulate the factual basis of
his claims. Agyeman v. Corrections Corp. of America,
390 F.3d 1101, 1103 (9th Cir. 2004).
Motion for Counsel and documents filed in support of the
Motion for Counsel, Plaintiff states he is unable to afford
counsel. Dkt. 34, 35, 36. He states court-appointed counsel
is necessary because the issues in his case are complex, he
is suffering from medical problems which prevent meaningful
litigation, he has limited knowledge of ...