Opinion
2:18-cv-00896-APG-VCF
08-01-2019
NAPOLEON OLIVERA, Plaintiff, v. CLARK COUNTY NV/CCDC, et al., Defendants.
ORDER MOTION FOR DISCOVERY [ECF NO. 9], MOTION FOR COUNSEL [ECF NO. 10]
Before the Court is Plaintiff Napoleon Olivera's Motion for discovery (ECF No. 9) and Motion to Appoint Counsel (ECF No. 10). For the reasons discussed below, Plaintiff's motion for discovery is granted in part and his motion for counsel is denied.
MOTION FOR DISCOVERY
I. Background
Plaintiff's case arises from an incident that allegedly took place while Plaintiff was incarcerated at Clark County Detention Center ("CCDC"). (ECF No. 6 at 1). Plaintiff asserts that on May 26, 2016, he slipped in the shower and was dragged out of the shower by Officer Church, causing additional injuries and emotional distress. (Id. at 4). Plaintiff's allegations against Officer Church do not include a first name or any kind of identifying number for the officer.
On June 4, 2019, the Court granted Plaintiff's application to proceed in forma pauperis and screened his complaint. (ECF No. 5). The Court held that Plaintiff's claims could proceed against several Doe Defendants and Officer Church. (Id. at 9). A summons was issued for Officer Church. (ECF No. 7). The summons could not be executed because there are "multiple employees with the last name Church" at CCDC, and "no P# [was] provided." (ECF No. 8). Plaintiff now moves for an order for Defendants "to produce under seal to this Court [t]he identity and contact information of defendants Officer Church and nurse (Jane Doe) [s]o Plaintiff is able to properly serve them." (ECF No. 9 at 2).
II. Legal Standard
"A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except...when authorized by these rules, by stipulation, or by court order." Fed. R. Civ. P. 26(d)(1). "[W]here the identity of alleged defendants will not be known prior to the filing of a complaint...the plaintiff should be given an opportunity through discovery to identify the unknown defendants, unless it is clear that discovery would not uncover the identities, or that the complaint would be dismissed on other grounds." Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). "To determine whether to grant a request for early discovery, the court shall apply the conventional 'good cause' standard that weighs the need for discovery to further justice against the prejudice to the opposing party." QOTD Film Inv. Ltd. v. Does 1-30, No. 2:16-cv-00928-APG-GWF, 2016 WL 8735619, at *2 (D. Nev. May 6, 2016).
Courts in this district apply a three-factor test when considering motions for early discovery to locate certain defendants. [Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999)]. First, "the plaintiff should identify the missing party with sufficient specificity such that the Court can determine that defendant is a real person or entity who could be sued in federal court." Id. at 578. Second, the plaintiff "should identify all previous steps taken to locate the elusive defendant" to ensure that the plaintiff has made a good faith effort to identify and serve process on the defendant. Id. at 579. Third, the "plaintiff should establish to the Court's satisfaction that plaintiff's suit against defendant could withstand a motion to dismiss.QOTD Film Inv. Ltd, 2016 WL 8735619 at *2.
Federal Rule of Civil Procedure 45(c)(2)(A) authorizes the Court to issue a subpoena duces tecum for production of documents or information. "Because personal service of a subpoena duces tecum is required under Rule 45(b), '[d]irecting the Marshal's Office to expend its resources personally serving a subpoena [for an in forma pauperis plaintiff] is not taken lightly by the court.'" Ronnie Edwards v. Las Vegas Metro. Police Dep't, No. 2:13-cv-01316-JAD-CWH, 2014 WL 7012436, at *3 (D. Nev. Dec. 12, 2014) (quoting Frazier v. Redding Police Dep't, 2012 WL 5868573 (E.D. Cal. Nov. 19, 2012)). "Normally, a motion for issuance of subpoena duces tecum should clearly identify the documents sought and show that the records are only obtainable through the identified non-party." Id.
III. Analysis
The Court finds good cause to allow Plaintiff to conduct some limited discovery at this point in the case to identify Officer Church. Plaintiff has given a last name for the officer and a specific date of the alleged incident, indicating Officer Church is an individual who can be sued in federal court. Though Plaintiff has not indicated previous steps taken to locate Officer Church, it is not clear what steps he could take while he is currently being incarcerated at another facility. (ECF No. 6 at 1). Because Plaintiff's complaint was previously screened, the Court is satisfied that his claim against Officer Church could potentially withstand a motion to dismiss. The Court will issue a subpoena duces tecum to the custodian of records for CCDC to identify Officer Church. Given the officer's last name and the specific date when the alleged incident took place, it seems probable that CCDC can identify the specific Officer Church at issue in this case.
The Court does not find good cause to allow discovery into the Jane Doe nurse at this time. Though Plaintiff has provided the specific date when the alleged incident took place, Plaintiff has not provided any other identifying information for the nurse. It is not clear that CCDC will have the necessary information to identify the nurse at this time. Discovery on this point can take place later in the case, if Officer Church can be served and the parties can hold a Rule 26(f) conference.
MOTION TO APPOINT COUNSEL
A litigant in a civil rights action does not have a Sixth Amendment right to appointed counsel. Storseth v. Spellman, 654 F.2d 1349, 13253 (9th Cir. 1981). The court may appoint counsel for an indigent plaintiff only under exceptional circumstances. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). "A finding of exceptional circumstances requires an evaluation of both the likelihood of success on the merits and the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved." Id. (citations and internal quotation marks omitted).
The Court finds there are not exceptional circumstances warranting the appointment of counsel at this time. The case is in its very early stages, making it difficult to examine the likelihood of Plaintiff s success on the merits. Though Plaintiff asserts he "doesn't understand the laws and rules involved in this process," (ECF No. 10 at 3), he has successfully followed the orders of the Court in this case, and his case does not appear to be particularly complex. In addition, there is no indication that Plaintiff is having trouble understanding English. (Id.). Therefore, Plaintiff's motion to appoint counsel is denied at this time.
ACCORDINGLY, and for good cause shown,
IT IS ORDERED that Plaintiff's Motion for discovery (ECF No. 9) is GRANTED IN PART as outlined below:
1. The Clerk of Court shall issue the attached subpoena duces tecum to the custodian of records at CCDC directing the custodian to provide to the Clerk of Court, the first and last name, and P# of Defendant Officer Church, if Defendant Officer Church is no longer a current employee of CCDC, the last known address of Officer must be provided.
2. The Clerk of Court is directed to deliver the subpoena duces tecum and a copy of this Order to the USMS.
3. The USMS shall serve the subpoenas duces tecum and a copy of this order on the custodian of records at CCDC.
4. The custodian of records must respond to the subpoenas duces tecum within 14 days of receipt. The custodian shall provide its response to the Clerk of Court. If Defendant Officer Church is longer a current employee, the Clerk of Court is directed to file Defendant Officer Church's last-known address under seal. Then, the Clerk of Court will issue a summons to Officer Church based on this information and deliver the summons, complaint, and a copy of this order to the USMS. (The summons will be sealed if Officer Church is no longer an employee of CCDC and his last known address is provided.)
5. Within 20 days after receiving the (sealed) summons, the USMS shall attempt to serve the summons and complaint on Defendant Officer Church. Upon receiving the summons return of service, the Clerk of Court will mail a copy of the return to the Plaintiff.
6. If the USMS is unable to serve the Defendant and Plaintiff wishes to have service again attempted, he must file a motion with the Court within 20 days. His motion must specify a more detailed name and/or address for the Defendant, or whether some other manner of service should be attempted. Under Rule 4(m) of the Federal Rules of Civil Procedure, service must be accomplished within 120 days from the date this order is entered.
IT IS FURTHER ORDERED that Plaintiff s Motion to Appoint Counsel (ECF No. 10) is DENIED WITHOUT PREJUDICE.
NOTICE
Pursuant to Local Rules IB 3-1 and IB 3-2, a party may object to orders and reports and recommendations issued by the magistrate judge. Objections must be in writing and filed with the Clerk of the Court within fourteen days. LR IB 3-1, 3-2. The Supreme Court has held that the courts of appeal may determine that an appeal has been waived due to the failure to file objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also held that (1) failure to file objections within the specified time and (2) failure to properly address and brief the objectionable issues waives the right to appeal the District Court's order and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).
Pursuant to LR IA 3-1, the Plaintiff must immediately file written notification with the court of any change of address. The notification must include proof of service upon each opposing party of the party's attorney. Failure to comply with this Rule may result in dismissal of the action.
IT IS SO ORDERED.
DATED this 1st day of August, 2019.
/s/_________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE
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