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Downey v. Trenary

United States District Court, W.D. Washington, Seattle

February 22, 2018

TY TRENARY, et al., Defendants.


          Mary Alice Theiler United States Magistrate Judge

         This is a civil rights action brought under 42 U.S.C. § 1983. This matter comes before the Court at the present time on plaintiff's motion for appointment of counsel, defendants' motion to strike affidavits, plaintiff's motion to compel non-defendant witnesses to produce affidavits, plaintiff's motion to strike and order sanctions for defendants' improper discovery request and certification, plaintiff's motions regarding the sufficiency of defendants' answers and/or objections to plaintiff's requests for admission, and plaintiff's motion for judicial notice of defendant's commission of perjury. The Court, having considered each of these motions, any responses thereto, and the balance of the record, hereby finds and ORDERS as follows:

         (1) Plaintiff's motions for appointment of counsel (Dkts. 41, 50, 92) are DENIED.[1]The currently pending motions for appointment of counsel represent plaintiff's fifth, sixth, and seventh requests that counsel be appointed to represent him in this matter. Plaintiff, in support of these requests, cites to the fact that there are 19 defendants, complex facts and issues of law, challenges in conducting necessary discovery, an upcoming transfer to a different facility, restrictions in law library access, and ongoing medical issues.

         As plaintiff acknowledges, there is no right to have counsel appointed in cases brought under 42 U.S.C. § 1983. Although the Court, under 28 U.S.C. § 1915(e)(1), can request counsel to represent a party proceeding in forma pauperis, the Court may do so only in exceptional circumstances. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984); Aldabe v. Aldabe, 616 F.2d 1089 (9th Cir. 1980). A finding of exceptional circumstances requires an evaluation of 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, 789 F.2d at 1331.

         As the Court previously noted, plaintiff has demonstrated ample ability to articulate his claims pro se, and the Court is not satisfied that the claims asserted are so complex that plaintiff will be unable to litigate them without the assistance of counsel. Plaintiff has also conducted extensive discovery in this matter, and has inundated the Court with motions seeking various types of relief. Nothing in the record before this Court demonstrates that plaintiff lacks the ability to effectively prosecute this case on his own. To the extent that either medical issues or transfers between facilities interfere with plaintiff's ability to meet specific deadlines, the Court can, upon a showing of good cause, adjust those deadlines to accommodate plaintiff's needs. Plaintiff has yet to demonstrate that appointment of counsel is warranted in this matter and, thus, his most recent requests for counsel must be denied.

         (2) Defendants' motion to strike affidavits (Dkt. 49) is GRANTED. Defendants seek to strike as immaterial three affidavits of plaintiff (Dkts. 44, 45, 46), and the declaration of Niko Karanikolas-Jamison (Dkt. 47), because the documents do not relate to any motion pending before the Court, nor do they seek any relief from the Court. A review of the materials in questions reveals that plaintiff's affidavits simply detail his complaints about the Snohomish County Jail (SCJ), and that Mr. Karanikolas-Jamison's declaration is apparently intended to support plaintiff's complaints. However, this sort of testimonial evidence, untethered from any pending motion, is not properly before the Court and must therefore be STRICKEN.

         (3) Plaintiff's motion to compel non-defendant witnesses to produce affidavits or similar witness testimony (Dkt. 53) is DENIED. Plaintiff asks the Court to order 12 non-defendant employees of defendant Snohomish County to produce affidavits, or some other form of testimony, regarding specific events detailed in plaintiff's motion. Defendants object to this request noting, among other things, that the request is improper. Defendants maintain that the proper way for plaintiff to obtain information from employees of defendant Snohomish County regarding actions taken or events that occurred within the scope of their employment, is to direct discovery requests to defendant Snohomish County. (Dkt. 59.)

         Defendants note that plaintiff has not propounded any discovery requests asking for the testimony of the County employees identified in his motion, nor has plaintiff met and conferred regarding the testimony. (Dkt. 59 at 2 n.2) Defendants state that if defendant Snohomish County had been properly served with such requests, it would have answered plaintiff's interrogatories on the topics at issue. The Court concurs that plaintiff's motion to compel testimony which has not been the subject of a proper discovery request is improper and must therefore be denied.

         (4) Plaintiff's motion to strike improper discovery requests and to order sanctions (Dkt. 54) is DENIED. Plaintiff asserts in his motion that defendant Snohomish County attempted to have its Second Interrogatories and Requests for Production hand delivered to plaintiff, but the discovery requests were not properly verified, nor were they accompanied by proof of service, and were therefore improper. Plaintiff seeks to strike the discovery requests and he also seeks an award of reasonable expenses and fees as a sanction for defendants' violation of Fed. Rule Civ. P. 26(g).

         In a subsequent submission, plaintiff acknowledges that approximately a week after the discovery requests were hand delivered to him at the SCJ, he received via legal mail a standalone document which was identified as a “Declaration of Service” relating to the hand delivery of the discovery requests. (See Dkt. 66.) Plaintiff explains that the declaration of service he received in the mail was dated January 12, 2018, the date plaintiff acknowledges having received the hand delivery from SCJ Captain Kevin Young, and that the envelope it came in was post-marked January 12, 2018 in Seattle, which apparently seems “peculiar” to plaintiff and suggests to him that Mr. Young and defendants' counsel are guilty of perjury and falsifying documents. (See id.)

         A review of the discovery requests at issue show that they were properly signed by defendants' counsel. (See Dkt. 54-1 at 12.) While plaintiff claims they were not properly verified, he appears to be referencing a page in the discovery request which requires plaintiff's verification, not the verification of a defendant or defendants' counsel. (See id. at 7.) To the extent plaintiff complains about improper certification of the service of the discovery requests, plaintiff fails to establish any impropriety. Plaintiff points to nothing in the Court rules requiring that a certificate of service be served contemporaneously with discovery requests, and plaintiff's own evidence reflects that the certificate of service pertaining to the discovery requests at issue was mailed the same day the requests were hand delivered to plaintiff by Captain Young. Plaintiff establishes absolutely no basis for striking defendants' discovery requests or for the imposition of sanctions.

         (5) Plaintiff's motions regarding the sufficiency of the answers and/or objections to his requests for admissions (Dkts. 55, 56, 74) are DENIED.[2] Plaintiff challenges the sufficiency of the answers defendants Daniel Stites, Terry Bloss, and Kimberly Parker provided to his requests for admissions, claiming that defendants are “feigning ignorance, playing games, objecting on frivolous grounds, and attempting to misconstrue wording so as to feign confusion.” (See id.) Plaintiff asks that these defendants be directed to provide complete denials, or complete admissions to his requests. Defendants argue that plaintiff's requests are not in conformance with the rules as they are vague, confusing, compound, call for legal conclusions, and seek information outside of defendants' knowledge. (Dkts. 83, 88.) Defendants further argue that plaintiff does not make an adequate showing that defendants' objections are improper. (Id.) Finally, defendants note that plaintiff has not actually identified the specific shortcomings of defendant Parker's answers and objections, but has merely inserted in his motion a page detailing the shortcomings he identified in Ms. Bloss' answers. (Dkt. 88 at 2.)

         Rule 36 of the Federal Rules of Civil Procedure authorizes a party to serve on any other party a written request to admit the truth of any matters within the scope of Fed.R.Civ.P. 26(b) that relate to statements or opinions of fact or of the application of law to fact. See Fed. R. Civ. P. 36(a)(1). The purpose of Fed.R.Civ.P. 36(a) “is to expedite trial by eliminating the necessity of proving undisputed ...

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