*1 On May 1, 2022, Plaintiff, who is currently an inmate at Richard J. Donovan Correctional Facility, constructively filed[1] the operative Second Amended Complaint (“SAC”). Dkt. 17. In his sole remaining claim, Plaintiff alleges that Defendant violated Plaintiff's Eighth Amendment right to be free from cruel and unusual punishment by unleashing a K-9 dog on Plaintiff after Plaintiff was apprehended following his escape from custody on July 18, 2020. Id. On January 6, 2023, Defendant filed an Answer to the SAC. Dkt. 70. On January 9, 2023, the Court issued a Case Management and Scheduling Order setting a discovery cut-off on August 10, 2023 and a substantive motion cut-off on September 7, 2023. Dkt. 72.

On April 2, 2023, Plaintiff constructively filed a motion requesting issuance of a subpoena directed to the Riverside County Sheriff's Department. Dkt. 86. Specifically, Plaintiff sought:

See id. at 3-6.

On April 18, 2023, the Court granted Plaintiff's motion requesting issuance of the subpoena and ordered the Clerk of Court to issue a signed subpoena directed to the Riverside County Sheriff's Department. Dkt. 89. On May 9, 2023, Defendant filed a Motion to Quash Subpoena and Motion for Protective Order (“Motion to Quash”), requesting an order quashing Plaintiff's subpoena in its entirety and a protective order (1) barring Plaintiff from “service of further subpoenas seeking [Defendant's] employment or personnel file records[,]” (2) barring the County of Riverside “from producing any of [Defendant's] or any other non-party deputy's personnel file records[,]” and (3) requiring Plaintiff “to establish his reasonable ability to comply with a protective order and maintain the privacy and confidentiality of, and prevent (un)intended disclosure to third parties of any privileged or confidential documents that may subsequently be produced to him[.]” Dkt. 93 at 2, 7.

On June 9, 2023, the Court issued an Order granting in part and denying in part Defendant's Motion to Quash. Dkt. 106. The Court denied Defendant's request for an order quashing Plaintiff's subpoena, but limited Plaintiff's discovery of documents relating to Defendant's use of force and dog handling training to five years prior to the July 18, 2020 incident. Dkt. 106 at 4-5.

*2 On June 20, 2023, the Court issued a Protective Order in this matter. Dkt. 109. On June 22, 2023, the Court issued an Order requiring the County of Riverside to respond to Plaintiff's subpoena no later than June 29, 2023. Dkt. 110. The Court stated “[a]ny responsive documents that are subject to the protective order may be produced to Plaintiff via the [California Department of Corrections and Rehabilitation (“CDCR”)] Litigation Coordinator for the Richard J. Donovan Correctional Facility.” Id.

On July 18, 2023, Plaintiff constructively filed a Motion to Compel Subpoena Responses, stating he had not received “anything” from the County of Riverside in response to his subpoena. Dkt. 113. On July 23, 2023, Plaintiff constructively filed the instant Motion to Compel RFP Responses, stating Defendant “produced nothing” in his responses to Plaintiff's First Set of Requests for Production. Dkts. 118, 119. On August 20, 2023, Plaintiff constructively filed a Motion for Sanctions seeking unspecified “discovery sanctions” against Defendant based on the Riverside County Sheriff's Department's alleged failure to comply with Plaintiff's subpoena. Dkt. 127. In the meantime, the Court had issued an Order continuing the substantive motion deadline to thirty days after issuance of the Court's ruling on the Motion to Compel Subpoena Responses. Dkt. 114.

On October 4, 2023, the Court granted in part and denied in part Plaintiff's Motion to Compel Subpoena Responses but denied Plaintiff's other motions. Dkt. 137. The Court ordered the County of Riverside to provide Plaintiff with a form permitting release of Plaintiff's medical records to the County of Riverside, for the County of Riverside to Request Plaintiff's medical records, and for the County to produce Plaintiff's medical records to him once they were received. Dkt. 137 at 6–7. The Court also ordered the County to file (1) a notice indicating whether any documents have been withheld on the basis of privilege and, if so, identifying the applicable privilege(s) and supporting legal authority, and (2) a privilege log. Id. The County filed their notice and privilege log on October 11, 2023. Dkt. 138.

On November 8, 2023, Plaintiff constructively filed the instant Motion for Discovery Sanctions Dkt. 141. On November 9, 2023, Plaintiff constructively filed the instant Motion to Compel. Dkt. 143. Plaintiff also filed a Motion for Appointment of Counsel, Dkt. 145, and a Motion for Leave to File an Amended Complaint, Dkt. 148, on November 15, 2023, and November 29, 2023 respectively. Defendant filed an Opposition to the Motion for Sanctions and Motion to Compel on December 11, 2023. Dkt. 149. On the same day, Plaintiff filed a Request for the Clerk to Enter Default against Defendant Saidleman. Dkt. 150.

A. MOTION TO COMPEL AND MOTION FOR SANCTIONS

1. Applicable law

“A party seeking discovery may move for an order compelling an answer, ... production, or inspection.” Fed. R. Civ. P. 37(a)(3)(B)(iii), (iv). “[A]n evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer or respond.” Fed. R. Civ. P. 37(a)(4).

Federal Rule of Civil Procedure 37 also authorizes the sanction of default against a party who disobeys a court's discovery orders. Fed. R. Civ. P. 37(b)(2)(A)(vi). To justify the imposition of case-dispositive sanctions, a court must find that the discovery violations were due to “willfulness, bad faith, or fault of the party.” Commodity Futures Trading Comm'n v. Noble Metals Int'l, Inc., 67 F.3d 766, 770-71 (9th Cir. 1995), cert. denied, 519 U.S. 815 (1996). Disobedient conduct “not shown to be outside the control of the litigant” is all that is required to establish willfulness, bad faith, or fault. Henry v. Gill Indus., Inc., 983 F.2d 943, 948-49 (9th Cir. 1993) (quoting Fjelstad v. Am. Honda Motor Co., 762 F.2d 1334, 1341 (9th Cir. 1985)); see also Fair Hous. of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002), cert. denied, 537 U.S. 1018 (2002). In evaluating the propriety of sanctions, the Court considers “all incidents of a party's misconduct.” Adriana Int'l Corp. v. Thoeren, 913 F.2d 1406, 1411 (9th Cir. 1990), cert. denied, 498 U.S. 1109 (1991).

*3 In deciding whether to enter default for failure to comply with discovery orders, a district court must consider five factors: “(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007). “The first two of these factors favor the imposition of sanctions in most cases, while the fourth cuts against a default or dismissal sanction. Thus the key factors are prejudice and availability of lesser sanctions.” Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir. 1990).

2. Analysis

Here, Plaintiff does not appear to seek an order compelling any further discovery, but rather appears to complain that Defendant and/or the County have not provided discovery already compelled by this Court's previous orders. See Dkt. 143.[2] Because the Court has already compelled the discovery Plaintiff requests, his Motion to Compel is DENIED as moot.

With respect to Plaintiff's request for sanctions for the County's alleged failure to comply with the Court's previous orders, the Court notes that counsel for Defendant and the County has attested that they have delivered the pertinent discovery to CDCR as directed and counsel has confirmed that CDCR has received the files. Dkt. 149 at 5. Absent any evidence that the County or Defendant have failed to comply with the Court's orders, Plaintiff's Motion for sanctions must be DENIED. For the same reasons, Plaintiff has not shown that entering default for failure to obey court orders is appropriate at this time, and therefore his request for the Court to enter default is also DENIED.

Still, counsel for Defendants notes that they cannot confirm whether CDCR has delivered the discovery to Plaintiff or at least allowed him to view it in controlled circumstances. Id. To the extent an order is necessary, the Court again ORDERS the Richard J. Donovan Correctional facility to make available the discovery delivered by Defendants, within the prison's security and procedural regulations. These items should be provided to Plaintiff as soon as practicable.

B. MOTION FOR LEAVE TO AMEND

1. Applicable law

*4 When the court has entered a scheduling order and a party files a motion to amend the pleadings after the deadline set by the court, the motion is controlled by Federal Rule of Civil Procedure (“Rule”) 16. See AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 952 (9th Cir. 2006) (“Put simply,” a party cannot “appeal to the liberal amendment procedures afforded by Rule 15; his tardy motion ha[s] to satisfy the more stringent ‘good cause’ showing required under Rule 16.”) (citing Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-8 (9th Cir. 1992)). Pursuant to Rule 16, “[a] schedule may be modified only for good cause and with the judge's consent.” Rule 16(b)(4). This requirement “primarily considers the diligence of the party seeking the amendment.” Johnson, 975 F.2d at 609. “Although the existence or degree of prejudice to the party opposing the modification might supply additional reasons to deny a motion, the focus of the inquiry is upon the moving party's reasons for seeking modification. If that party was not diligent, the inquiry should end.” Id.

If the moving party shows good cause under Rule 16(b), then the court applies Rule 15(a)'s liberal standards in determining whether to grant leave to amend. Johnson, 975 F.2d at 607-8 (In order to join parties after the amendment deadline has passed, “(1) Plaintiff must show good cause to allow modification of the schedule order under Federal Rule of Civil Procedure (“Rule”) 16 and (2) the court must determine whether amendment is proper under Rule 15.”). Rule 15(a) provides that leave to amend “shall be freely given when justice so requires.” Rule 15(a)(2). Generally, leave to amend is denied only upon a showing of undue delay, bad faith or dilatory motive on the part of the movant, repeated failures to cure deficiencies by amendments previously allowed, undue prejudice to the opposition party by virtue of the allowance of the amendment, and futility of the amendment. See Chudacoff v. Univ. Med. Ctr. Of S. Nevada, 649 F.3d 1143, 1152 (9th Cir. 2011) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)); see also DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987). Rule 15(a) “is to be applied with extreme liberality,” Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990), and whether to permit amendment is a decision “entrusted to the sound discretion of the trial court.” Jordan v. County of Los Angeles, 669 F.2d 1311, 1324 (9th Cir. 1982).

2. Analysis

The Local Rules require that any proposed amended pleading should be complete within itself and attached to any motion for leave to amend. L.R. 15-1 (“Any proposed amended pleading must be filed as an attachment to the related motion or stipulation.”); see also L.R. 15-2 (“Every amended pleading filed as a matter of right or allowed by order of the Court shall be complete including exhibits. The amended pleading shall not refer to the prior, superseded pleading.”). Plaintiff has not attached his proposed amended complaint to his motion, and thus his motion is subject to denial. See, e.g., Balzarini v. Diaz, No. 518CV01962RGKMAA, 2021 WL 6845545, at *9 (C.D. Cal. Dec. 16, 2021) (noting motions could be denied for failure to comply with Local Rules 15-1 and 15-2, collecting cases), report and recommendation adopted, No. 518CV01962RGKMAA, 2022 WL 393585 (C.D. Cal. Feb. 8, 2022).

In any case, as discussed below, Plaintiff has described his two proposed amendments in his motion with sufficient particularity to allow the Court to determine that his motion would be denied on its merits even if Plaintiff had attached a proposed amended complaint.

The Court entered a scheduling order on January 9, 2023. Dkt. 72. The Court's briefing schedule does not set a specific deadline for amending pleadings. Id. However, the Court originally set deadlines for discovery to be completed by August 10, 2023, and for dispositive motions to be filed by September 7, 2023. Dkt. 72. The discovery period has technically expired and the Court has stayed the deadline for dispositive motions pending the resolution of these motions. Dkt. 147. Plaintiff's proposed amendments—which include new claims, proceeding on different legal theories, against defendants who have yet to appear in this action—would require modifications to the expired discovery deadline and would affect the Court's determination of the new dispositive motion deadline; accordingly, Plaintiff must meet Rule 16's “good cause” standard to demonstrate he is entitled to amend his SAC. See, e.g., Jones v. City of Tulare, No. 1:17-CV-1260-SKO, 2018 WL 6271577, at *3 (E.D. Cal. Nov. 30, 2018) (noting that Rule 16 governed motion to amend because “[a]lthough the Court's scheduling Order does not set a specific deadline for amending the complaint, Plaintiff's motion to amend the complaint would require amending other dates in the Scheduling Order.”).

*5 Plaintiff seeks leave to add two claims against three new defendants:

Neither of these claims rely on new facts uncovered during discovery; Plaintiff could have included them in his original Complaint. Nonetheless, Plaintiff apparently raised them for the first time in the instant Motion, dated November 21, 2023—after the close of discovery and just weeks before the Court's previous deadline for filing dispositive motions. Dkt. 8. The Court cannot find, and Plaintiff does not point to, any earlier attempt to add these claims or defendants. Indeed, Plaintiff was already given several opportunities to amend his complaint and did not include these theories in any version of his complaint. See Dkts. 1, 15, 17. Absent any extenuating circumstances, Plaintiff's failure to raise these claims at any earlier point precludes a finding that he has been diligent in attempting to amend his SAC.

To be sure, with respect to Plaintiff's first proposed claim against the County, Plaintiff notes that he did initially include a municipal liability claim against the County which was dismissed in part because Plaintiff had failed to state an underlying constitutional claim against any County employee. Dkt. 148 at 2–4. Plaintiff notes that Saidleman was originally misidentified as an officer with the Indio Police Department but has since been correctly identified as an employee of the County. Id. Given that Plaintiff has stated a claim against Saidleman for excessive force related to the K-9 incident, Plaintiff argues he should be able to add a claim against the County for failure to train. Id. If Plaintiff's “failure to train” claim against Saidleman had been dismissed due to a misconception about his employer, the Court would likely find that Plaintiff had demonstrated good cause as to justify amending his SAC to include this claim, particularly where the County has been heavily involved in the action already as a participant in discovery. However, as noted above, Plaintiff has never argued in any version of his complaint that the County was liable for failure to train Saidleman in K-9 handling; rather, Plaintiff's original municipal liability claim against the County was premised on an entirely separate theory against different officers who were dismissed as Defendants due to Plaintiff's failure to state a claim. See Dkt. 1 at 7 (alleging Shriff Bianco is liable for unsafe jail conditions, including officers' failure to place Plaintiff in leg chains, which led to Plaintiff's escape and the subsequent K-9 attack); Dkt. 15 at 5 (alleging the County is liable for failure to equip employees Acosta and Staggs with leg chains to secure Plaintiff to prevent his escape attempt); Dkt. 17 at 4–6(same); see also Dkt. 19 (report and recommendation that Plaintiff's claim against the County be dismissed because Plaintiff had failed to establish that lack of leg chains was the proximate cause of his injury and because Plaintiff had failed to establish any County employee violated his constitutional rights). The fact that Plaintiff previously included an entirely different theory against the County is ultimately irrelevant to whether Plaintiff has been sufficiently diligent in seeking to add this particular claim related to the County's alleged failure to train Saidleman.

*6 With respect to Plaintiff's second proposed claim, Plaintiff notes that he has been unaware of the identities of the officers who initially apprehended him. Dkt. 148 at 5–6. However, even if Plaintiff was unaware of the names of the putative defendants at the time of filing any of his complaints, he could have named the individuals as “Doe” defendants, or at least described the legal theory for his claims. Indeed, Plaintiff admits that he still does not know the names of the putative defendants, and now asks that he be able to add them as “Doe” defendants. Id. While the Court may have been inclined to allow Plaintiff to add “Doe” defendants at an earlier point, it is simply too late for such an amendment now, after the close of discovery, where Plaintiff may have been able to discover the identity of the officers.

Ultimately, Plaintiff did not raise these theories until over a year into the instant litigation, after the close of discovery and just weeks before the dispositive motion cutoff. Neither of Plaintiff's proposed claims rely on information uncovered during discovery. Under these circumstances, the Court cannot find that Plaintiff was diligent in seeking to amend his complaint with these claims and new defendants, and thus Plaintiff's motion must be DENIED for failure to establish good cause under Rule 16. See, e.g., McMahon v. Cnty. of Santa Barbara, No. CV1502714BROCWX, 2016 WL 11758773, at *7 (C.D. Cal. Apr. 19, 2016) (collecting cases where courts found delays of 2–5 months constituted a lack of diligence).

D. MOTION FOR APPOINTMENT OF COUNSEL

1. Applicable law

There is no constitutional right to appointed counsel in a civil case. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009); Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). In exceptional circumstances, the Court may request that counsel voluntarily represent a civil rights plaintiff, but the Court may not compel an attorney to do so. See Mallard v. U.S. Dist. Court, 490 U.S. 296, 298 (1989); see also 28 U.S.C. § 1915(e). Furthermore, the Court has no way to pay counsel requested under 28 U.S.C. § 1915(e). See Tedder v. Odel, 890 F.2d 210, 211 (9th Cir. 1989) (“The Supreme Court has declared that ‘the expenditure of public funds [on behalf of an indigent litigant] is proper only when authorized by Congress.’ ” (alteration in original) (citation omitted)); United States v. 30.64 Acres of Land, 795 F.2d 796, 801 (9th Cir. 1986) (no statute provides funds to pay counsel requested under 28 U.S.C. § 1915(e)).

Where, as here, a party is proceeding IFP, “the district court ‘may request an attorney to represent any person unable to afford counsel.’ ” Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004) (quoting 28 U.S.C. § 1915(e)(1) (emphasis added)); Solis v. Cty of Los Angeles, 514 F.3d 946, 958 (9th Cir. 2008) (quoting same). The decision to request the appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1) is within “the sound discretion of the trial court and is granted only in exceptional circumstances.” Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). To find exceptional circumstances warranting the appointment of counsel, the court must consider at a minimum the likelihood of the plaintiff's success on the merits and the plaintiff's ability to articulate his claims “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)).

2. Analysis

The Court notes that Plaintiff has requested the appointment of counsel several times, and each time the Court has denied the request without prejudice. Dkts. 13, 22, 60, 80, 99, 106. Plaintiff has not demonstrated that circumstances have changed as to justify the appointment of counsel at this juncture. Plaintiff notes that he will be prejudiced if he does not have the assistance of counsel at trial; however, the case is still in the discovery and has not yet survived a motion for summary judgment. Accordingly, appointing counsel for the purposes of representing Plaintiff at trial would be premature. Plaintiff's request is therefore again DENIED, without prejudice.

*7 Based upon the foregoing reasons: