Voskanyan v. Los Angeles Sheriffs Dep't
Voskanyan v. Los Angeles Sheriffs Dep't
2020 WL 10619185 (C.D. Cal. 2020)
March 17, 2020
Scott, Karen E., United States Magistrate Judge
Summary
The Court ordered Defendants to re-send certain discovery responses and to file a notice confirming when those documents were sent. The Court also denied Plaintiff's request for spoliation sanctions related to unknown records, and granted Plaintiff a 30-day extension of time to file his own motion for summary judgment. Any ESI requested by Plaintiff in his proposed subpoenas may be useful in opposing Defendants' motion for summary judgment.
Additional Decisions
ROBERT VOSKANYAN
v.
LOS ANGELES SHERIFFS DEPARTMENT, et al
v.
LOS ANGELES SHERIFFS DEPARTMENT, et al
Case No. 2:15-cv-06259-MWF-KES
United States District Court, C.D. California
Filed March 17, 2020
Counsel
Jazmin Dorado, Courtroom Clerk, ATTORNEYS PRESENT FOR PLAINTIFF: None PresentNot Present, Court Reporter, ATTORNEYS PRESENT FOR DEFENDANTS: None Present
Scott, Karen E., United States Magistrate Judge
PROCEEDINGS (IN CHAMBERS): Order re Motion for Appointment of Counsel and Discovery Disputes (Dkts. 290, 292, 303, 304, 306, 309)
A. Motion for Appointment of Counsel.
*1 On December 23, 2019, Plaintiff Robert Voskanyan (“Plaintiff”) filed a Motion for Appointment of Counsel. (Dkt. 292.) The Court has denied Plaintiff's two previous Motions for Appointment of Counsel. (Dkts. 33, 34, 37, 38.)
Plaintiff's new request for the appointment of counsel alleges that: (1) he is unable to afford counsel and has been unsuccessful in soliciting the assistance of pro bono counsel; (2) his imprisonment limits his ability to litigate due to limited access to the law library and legal books, his limited legal knowledge, and lack of internet access; and (3) counsel would better enable him to present evidence and cross examine witnesses and defendants at trial. (Dkt. 292) Plaintiff also requests that the Court assist him in obtaining legal assistance from Loyola Law School or “any other law firm.” (Id.)
“[I]t is well-established that there is generally no constitutional right to counsel in civil cases.” United States v. Sardone, 94 F.3d 1233, 1236 (9th Cir. 1996). There is also no constitutional right to appointed counsel to pursue a § 1983 claim. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981).
Under 28 U.S.C. § 1915(e), the Court “may request an attorney to represent any person unable to afford counsel.” However, § 1915(e) does not authorize federal courts to force an attorney to represent someone without compensation. Mallard v. U.S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296, 310 (1989); United States v. 30.64 Acres of Land, 795 F.2d 796, 801 (9th Cir. 1986). Nor does § 1915(e) authorize expending public funds to pay counsel appointed under that statute. See 30.64 Acres of Land, 795 F.2d at 801; see also United States v. MacCollom, 426 U.S. 317, 321 (1976) (“[T]he expenditure of public funds [on behalf of an indigent litigant] is proper only when authorized by Congress[.]”).
“The decision to appoint such counsel [under § 1915(e)] is within ‘the sound discretion of the trial court and is granted only in exceptional circumstances.’ ” Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004) (citation omitted). “A finding of the exceptional circumstances ... requires at least [1] an evaluation of the likelihood of the plaintiff's success on the merits and [2] an evaluation of the plaintiff's ability to articulate his claims ‘in light of the complexity of the legal issues involved.’ ” Id. (citation omitted). “Neither of these factors is dispositive and both must be viewed together before reaching a decision.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (citation omitted). Thus, where a pro se civil litigant shows he has a good grasp of basic court procedure and sets forth the factual and legal basis for his claims in a straightforward manner, he is not entitled to court-appointed counsel.
“Most actions require development of further facts during litigation and a pro se litigant will seldom be in a position to investigate easily the facts necessary to support the case.” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). “If all that was required to establish successfully the complexity of the relevant issues was a demonstration of the need for development of further facts, practically all cases would involve complex legal issues.” Id.
*2 After an evaluation of both the likelihood of success on the merits and Plaintiff's ability “to articulate his claims pro se in light of the complexity of the legal issues involved[,]” the Court finds that the exceptional circumstances which are necessary to grant Plaintiff's request do not appear to exist at this time. See id. (citation omitted). Neither the alleged complexity of Plaintiff's case nor his limited knowledge of the law have prevented him from clearly articulating his claims. Although Plaintiff is not an attorney, his discovery motions (Dkts. 290, 303, 304, 306) clearly communicate Plaintiff's discovery requests and the facts on which those requests are based.
If Plaintiff's limited law library access interferes with his ability to meet further deadlines in this action, then Plaintiff may file a request for an extension, explaining the specific circumstances preventing him from meeting the deadline. The Court will grant Plaintiff's extension requests when appropriate.
Plaintiff is advised that if the case becomes ready for trial, the Court will, if the District Judge so directs, refer the matter to the Central District of California's volunteer pro bono program, with a request that the administrator ascertain whether any of the counsel who have volunteered their services to that program would be willing to take on Plaintiff's representation.
IT IS HEREBY ORDERED that Plaintiff's request for the appointment of counsel (Dkt. 292) is DENIED without prejudice.
B. Discovery Disputes.
The following chart is a timeline of the outstanding discovery disputes, with shaded rows representing pending motions:
Docket # 281 285 286 287 288 290 291 294 295 297 298 299 300 301 303 304 302 305 306 309 Summary Plaintiff contends that certain discovery has not been provided by Defendants: (1) Defendants Tutt, Luna, Dr. Pryor, Dr. Little, and Dr. Silvanskaya provided incomplete or missing responses to requests for admission (“RFAs”) and Interrogatories (“Rogs”); (2) Defendants McDonnell and Salinas failed to respond to Requests for Production of Documents (“RFPs”); (3) the medical records provided by Defendants are incomplete and missing pages; (4) the inspector general report was not provided; (5) the ACLU order and report was missing; (6) the legal mail log was missing; (7) records regarding “San Fernando Court Case # PA081449, PA 083749” and a judge-requested medical evaluation were missing; (8) video footage from inside the prison was missing; (9) photographs of Plaintiff are missing; and (10) Defendants' responses to RFAs and Rogs are “identical and [not] useful” The Court: (1) extends the discovery deadline from November 20, 2019 until December 19, 2019; (2) substitutes Dr. Silvanskaya's estate for Dr. Silvanskaya due to her being deceased; and (3) orders Defendants to respond to Plaintiff's discovery contentions (Dkt. 281) paragraph-by-paragraph, and to disclose information Defendants have regarding Dr. Little's dementia and capacity to respond to discovery or testify. Defendants respond to Plaintiff's discovery contentions (Dkt. 281) as instructed by the Court (Dkt. 285) informing the Court that: (1) they would re-send Rog responses for Defendants Tutt, Luna, and Dr. Pryor, but cannot provide Rog responses for Dr. Little due to his poor health and Dr. Silvanskaya because she is deceased; (2) Defendants McDonnell and Salinas cannot produce documents because they no longer work for the County of Los Angeles and do not have possession, custody, or control of any of the requested documents; (3) Defendants have complied by providing medical records and incident reports; (4) Defendants cannot provide a mail log, internal affairs report, or disciplinary reports of other inmates, because none exist; (5) any Superior Court records would be kept by the Superior Court, not the Sheriffs office; (6) any ACLU records would need to be obtained from the ACLU; (7) as discussed in prior discovery motions, Defendants are unable to produce the video footage of the assault from within the prison; and (8) Dr. Little has dementia, so Defendants will work to obtain a declaration from his daughter confirming his fragile state. The Court orders Defendants to provide a declaration under penalty of perjury by someone with personal knowledge of Dr. Little's medical condition who can declare that Dr. Little is not mentally competent to sit for a deposition or provide testimony. Plaintiff files another motion to compel production of the CD and Photos of him which he states he has still not received as of December 2, 2019, despite Defendants' previous status report stating that they had sent the CD and Photos on November 15, 2019 (Dkt. 283). Plaintiff moves for an extension of time to conduct discovery from December 11, 2019 until February 9, 2020 in order to: (1) file subpoenas regarding unanswered RFPs, the CD and Photos of Plaintiff, and unanswered “subpoenas, admissions, interrogatories, video footage, C.S.J. Investigation Report, follow Court Orders, Inspector General Report, Internal Affair Report, Letters of Complaints, database information of doctor's, L.A.C.S.D. Policy Manual of Jail, [and] legal mail login”; and (2) file his opposition to Dkt. 285 regarding Plaintiff's discovery contentions in Plaintiff's previous opposition to Defendants' status report (Dkt. 281) and service of Dr. Little. Responding to Plaintiff's previous motion to compel production of the CD and Photos (Dkt. 288), Defendants state that they sent the CD and Photos on November 15, 2019, and provide shipping documentation. The Court: (1) orders Plaintiff to inform the Court whether he has received the CD and Photos, and if not, whether he has asked prison personnel if they have received the CD and Photos; and (2) extends the discovery cutoff date until February 7, 2020 only for Plaintiff to potentially serve third-party subpoenas, requiring Plaintiff to fill out and send any proposed subpoenas to the Court first so the Court can determine relevancy and whether Plaintiff has shown sufficient good cause for his delay. The Court orders Defendants to file a status report by January 22, 2020 describing in general terms what discovery has been provided to date, including information regarding witnesses and facts related to the alleged assault on Plaintiff, and all documents on which Defendants may rely in moving for summary judgment. Defendants provide a declaration from Dr. Little's daughter, stating that Dr. Little has dementia and is not competent to testify. Plaintiff informs the Court that he has still not received the CD and Photos and requests the Court order Defendants to re-send them. The Court denies all pending motions to compel discovery from Dr. Little and excuses him from responding to pending or future discovery. Defendants request an extension of time from January 22, 2020 until February 5, 2020 to respond to the Court's order requiring they file a status report (Dkt. 295). The Court grants Defendants' request for an extension of time (Dkt. 300). Plaintiff moves to compel discovery and for Rule 37 sanctions for: (1) the CD and Photos; (2) “database information” from the California Medical Board regarding why Dr. Silvanskaya (deceased), Dr. Little (dementia), and Dr. Pryor are still listed as active[1]; (3) Rog responses from Defendant Tutt; (4) RFA responses from Defendant Luna; (5) RFA and Rog responses from Defendant Dr. Pryor; and (6) document production in response to RFPs from Defendants McDonnell and Salinas. Plaintiff also requests: (1) Rule 37 sanctions due to Defendants' delay in providing Dr. Little's daughter's declaration regarding his inability to testify and (2) evidentiary sanctions for alleged spoliation of “electronic or other records.” Plaintiff informs the Court that he has still not received the CD and Photos as of January 20, 2020, is attempting to communicate with prison officials about whether they were received, and requests again that Defendants re-send the CD and Photos. The Court orders Defendants to include in their status report (1) the approximate volume of documents on the CD and (2) the cost to re-send the contents of the CD in paper form. Defendants submit their status report (in response to Court orders at Dkts. 295, 302): (1) describing the categories and quantities of discovery provided [1000+ pages of medical records, 75 pages of Plaintiff's movement records, 16 pages of inmate complaints, 4 pages of disciplinary records, 30 pages of incident and illness reports, less than 25 pages of shift reports, 8 photos of Plaintiff, and 5 pages of inmate medical care access policy]; (2) providing facts known to Defendants regarding witnesses to the alleged assault; (3) providing a list of documents upon which Defendants may rely for summary judgment; and (4) informing the Court that they are mailing another set of the Photos, without the CD, to Plaintiff, at their own cost. Defendants also attached the Los Angeles County Sherriff's Department Incident Report regarding the alleged assault. (Dkt. 305-1.) Plaintiff responds to the Court's order regarding third-party subpoenas. (Dkt. 294.) Plaintiff attaches 14 proposed third-party subpoenas. (Dkt. 306 at 7-20.) Plaintiff explains that the following reasons account for his delay: (1) Defendants' non-compliance with discovery (four Defendants' failure to respond to Rogs and RFAs, and two Defendants' failure to comply with RFPs); (2) Plaintiff's limited law library access, limited phone call access, and lack of access to a private investigator; (3) the subpoenas are necessary because “Defendants are hiding and covering [up] all the important documents that do exist”; and (4) Plaintiff has discovered “DVTEL Video Camera Company sold to FLIR System Company on November 20, 2015” and he cannot locate an address for DVTEL. Plaintiff requests a 30-day extension of discovery because: (1) he is still awaiting responses either Rogs or RFAs from four defendants; (2) he has submitted 14 proposed subpoenas to the Court; (3) he is preparing a response to Defendants' most recent status report (Dkt. 305) and a request to “strike or set-aside” Defendants' anticipated motion for summary judgment; (4) he needs more time because of his medical condition and numerous doctor's visits; and (5) he needs more time because of limited law library access. Plaintiff also argues that Defendants' failure to send the four defendants' discovery responses amounts to a violation of Federal Rules of Civil Procedure 33, 34, 36, and 41(b), justifying sanctions under Rule 37(b).
1. Dkt. 290.
*3 This request for a general extension of time to conduct any and all discovery (Dkt. 290) is DENIED. The Court resolved all discovery issues regarding Dr. Young (Dkt. 299), has separately given Plaintiff additional time to request issuance of third-party subpoenas (Dkt. 294), and Plaintiff's other discovery contentions were addressed by Defendants addressing each contention paragraph-by-paragraph pursuant to the Court's order (Dkts. 285, 286).
2. Dkt. 303.
a. Defendants have re-sent the Photos contained on the CD (Dkt. 305) and the Court assumes Plaintiff has received them, without prejudice to Plaintiff informing the Court that he still does not have them.
b. “Database information” from the California Medical Board is not discovery Plaintiff can obtain from Defendants; it is also not relevant to this action.
c. Plaintiff claims Defendants Tutt, Luna, and Dr. Pryor have “failed to answer discovery[,]” appearing to reiterate his claim that Defendant Tutt has not provided Rog responses, Defendant Luna has not provided RFA responses, and that Dr. Pryor has not provided RFA or Rog responses. (Dkts. 281 at 4, 303 at 4.) On December 2, 2019, Defendants informed the Court that they were re-sending Defendant Tutt's Rog responses, Defendant Luna's RFA responses, and Defendant Dr. Pryor's RFA and Rog responses. (Dkt. 286 at 2.) On March 11, 2020, Plaintiff informed the Court that he has still not received these discovery responses. (Dkt. 309.)
d. Plaintiff cannot obtain documents responsive to RFPs from Defendants McDonnell and Salinas because they are not in possession, custody, or control of L.A. County documents as they no longer work there. Fed. R. Civ. P. 34. Defendants have provided Plaintiff with written responses indicating that both Defendant McDonnell and Salinas are retired and do not have access to the requested documents. (Dkts. 261-1, 285.) On August 15, 2019, Defendants advised Plaintiff that: “It may be more beneficial to subpoena documents from the County of Los Angeles.” (Dkt. 261 at 3.)
e. The Court ordered Defendants to provide a declaration from Dr. Little's daughter regarding his inability to testify by January 10, 2020. (Dkt. 287.) On January 10, 2020, Defendants requested an extension of time until January 14, 2020 to file the declaration. (Dkt. 296.) Defendants filed the declaration on January 14, 2020. (Dkt. 297.) Thus, no sanctions for a late filing are warranted. Plaintiff's vague request for spoliation sanctions related to unknown records (i.e., not the videos) is also denied.
Accordingly, Plaintiff's motion to compel (Dkt. 303) is GRANTED in part and DENIED in part. A party answering Rogs or RFAs has a duty to respond. Fed. R. Civ. P. 33; Fed R. Civ. P. 36. Accordingly, on or before March 24, 2020, Defendants are hereby ordered to re-send Defendant Tutt's Rog responses, Defendant Luna's RFA responses, and Dr. Pryor's RFA and Rog responses, and to file a notice confirming when those documents were sent.
If Plaintiff believes Defendants are answering Rogs or RFAs untruthfully, then the remedy is to impeach Defendants at trial, not move to compel a different response. Any issues regarding spoliation sanctions in connection with the video tape will be addressed, if necessary, to rule on Defendants' anticipated motion for summary judgment, or after that as a pretrial, evidentiary issue.
3. Dkt. 304.
As discussed above, the Court assumes Plaintiff has received the Photos at this time. Plaintiff may inform the Court if he has still not received them. Thus, Dkt. 304 is DENIED without prejudice.
4. Dkt. 306.
*4 Plaintiff has submitted the following proposed subpoenas to the Court:
1 2 3 4 5 6 7 8 9 10 11 12 13 14 To: DVTEL Video Surveillance Co. / FLIR Video Systems L.A. County Sheriff's Dept., Civil Litigation Unit L.A. County Sheriff's Dept., Civil Litigation Unit L.A. County Sheriff's Dept., Civil Litigation Unit L.A. County Sheriff's Dept., Civil Litigation Unit L.A. County Sheriff's Dept., Civil Litigation Unit L.A. County Sheriff's Dept., Civil Litigation Unit L.A. County Sheriff's Dept., Civil Litigation Unit L.A. County Sheriff's Dept., Internal Affairs Office L.A. County Sheriff's Dept., Civil Litigation Unit L.A. County, Office of Inspector General American Civil Liberty Union American Civil Liberty Union Hon. David B. Gelfound, Judge of the Superior Court, Dep #D, San Fernando Courthouse Request: The blueprint of video cameras' location in Men's Central Jail (“MCJ”) “5600”, including any maintenance done on that floor from July 7, 2015 until September 16, 2016. DVTEL video surveillance company's address, phone number, the contract between “two companies,” and the date and time of all repairs done in MCJ and the Twin Tower Correctional Facility (“TTC”) from July 7, 2015 until September 16, 2016. All electronically stored information (ESI) from July 7, 2015 and the July 7, 2015 written witness statements from “MYK Dean Williams, booking #4250066 [and] Ghillardo, booking #3842239.” All ESI from L.A. County Jail's Visiting Office pertaining to the: visitors, attorney offices, police officers, investigators, and other legal authorities' names and badge numbers who came to visit Plaintiff from July 7, 2015 until September 16, 2016. All ESI from the Mail Room Office pertaining to “the incoming and outgoing ‘legal mail’ log-in title 15, 119., starting from July 7, 2015 to September 16, 2016, including the Sheriff Officers daily log in book for legal mail.” ESI pertaining to “Defendants involved in this case,” and any background information on incidents similar to Plaintiff's assault. A.M. and P.M. shift log-in and log-out forms for all Sheriff Defendants from July 7, 2015 until September 16, 2016. All ESI pertaining to Jail Officers' names and badge numbers that communicated or investigated Plaintiff's July 7, 2015 assault and the reason why Plaintiff was “classified K-10-K.” All ESI, photos, videos, investigation reports, the officer's reports from February 18, 2016 and March 8, 2016 pertaining to the July 7, 2015 assault at TTC, and a legal form signed and dated by Plaintiff on February 18, 2016 “to keep those documents and photos and prosecute those who assault[ed Plaintiff] and his brother[.]” L.A. County Jail's “Policy Manual of Jail” and ESI pertaining to who signed and dated the policy setting a one-year limitation for storage of video footage when a pre-trial inmate is assaulted, including a “certified document” of that policy from July 7, 2015 to September 16, 2016. All ESI, investigation documents, and reports and orders between the Inspector General's office and L.A. County Jail pertaining to Plaintiff's injuries resulting from the assault and any emails from Plaintiff's family, from July 7, 2015 until September 16, 2016. “ACLU video cameras status in Los Angeles County Jail, [(MCJ)], and [(TTC)] facilities if they are trackable when [the] assault [on Plaintiff took] place from July 7, 2015 to September 16, 2016.” All ESI, communication between the ACLU and the L.A. County Sheriffs Department, and all requests to L.A. County Jail for Plaintiff's treatment and injuries from July 7, 2015 until September 16, 2016. All Court orders to L.A. County Jail regarding medical exams of Plaintiff after the assault from July 7, 2015 until September 16, 2016 in case no. PA083749 and all ESI exchanged between the Superior Court and L.A. County Jail regarding Plaintiff.
*5 The Court understands that Defendants are preparing a motion for summary judgment due by March 23, 2020. Once Defendants file their motion for summary judgment, the Court will determine whether the information sought by Plaintiff in his proposed subpoenas would be useful in opposing Defendants' motion. If the information would be useful, the Court may approve the relevant subpoenas and adjust deadlines accordingly. If the information sought is not necessary to oppose Defendants' motion for summary judgment and Plaintiff defeats Defendants' motion, the Court will determine whether the information sought would be relevant to proving Plaintiff's claims at trial and whether good cause exists for failing to seek such subpoenas earlier; if so, then the Court may adjust deadlines accordingly. Thus, the Court postpones ruling on Plaintiff's requests for subpoenas.
Nothing prevents Plaintiff from sending letters to private, third-party actors (i.e., the ACLU) asking for information.
IT IS FURTHER ORDERED that Defendants shall, on or before March 27, 2020, submit a status report addressing to the best of their knowledge: (1) what information sought in Plaintiff's proposed subpoenas they have already provided; and (2) who Defendants understand to have the information sought by Plaintiff.
5. Dkt. 309.
As discussed above, (1) Defendants are ordered to re-send Defendant Tutt's Rog responses, Defendant Luna's RFA responses, and Dr. Pryor's RFA and Rog responses, and (2) the Court will consider Plaintiff's 14 proposed subpoenas in light of Defendants' anticipated motion for summary judgment.
Plaintiff has requested a 30-day extension of time because he intends to file his own motion for summary judgment (Dkt. 309 at 5).
Plaintiff's application for an extension of time is HEREBY GRANTED. Accordingly, Plaintiff shall file any motion for summary judgment on or before April 15, 2020. Plaintiff's request for Rule 37 sanctions against Defendants is DENIED without prejudice.
Once Defendants move for summary judgment, Plaintiff should focus his efforts on opposing that motion, and he may request extensions as needed.
Footnotes
Plaintiff attaches physician profiles for Dr. Little, Dr. Silvanskaya, and Dr. Pryor, sent to him by the Medical Board of California, listing Dr. Little as “retired” but Dr. Silvanskaya and Dr. Pryor as non-retired. (Dkt. 303 at 9-16.)