Sutton v. Washington State Department of Corrections et al, No. 4:2015cv05123 - Document 69 (E.D. Wash. 2016)
Court Description: ORDER Denying Plaintiff's 54 Motion for Appointment of Counsel and Granting Defendants' 49 Motion for Protective Order. Signed by Magistrate Judge Mary K. Dimke. (MO, Courtroom Deputy)**9 PAGE(S), PRINT ALL**(Jason Sutton, Prisoner ID: 730954)
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Sutton v. Washington State Department of Corrections et al Doc. 69 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 Nov 07, 2016 2 SEAN F. MCAVOY, CLERK 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 JASON LEE SUTTON, NO: 4:15-cv-05123-MKD 9 Plaintiff, 10 v. 11 12 BERNARD WARNER, DONALD HOLBROOK, STEVEN FLEENOR, and RACHEL SMITH, ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL AND GRANTING DEFENDANTS’ MOTION FOR PROTECTIVE ORDER ECF Nos. 49, 54 13 Defendants. 14 15 BEFORE THE COURT are the following motions: (1) Plaintiff’s Motion for 16 Appointment of Counsel (ECF No. 54); and (2) Defendants’ Motion for Protective 17 Order (ECF No. 49). These matters were submitted for consideration without oral 18 argument. The Court has reviewed the briefing, the record, and the files herein, 19 and is fully informed. 20 ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL AND GRANTING DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER - 1 Dockets.Justia.com 1 2 3 DISCUSSION A. Plaintiff’s Motion for Appointment of Counsel (ECF No. 54) Plaintiff, who is proceeding pro se and in forma pauperis, has moved for 4 appointment of counsel pursuant to 28 U.S.C. § 1915. ECF No. 54. Plaintiff 5 contends that he needs an attorney to assist him in the discovery process and 6 drafting summary judgment pleadings. ECF No. 54 at 1-2. Section 1915(e)(1) 7 vests a district court with discretion to “request an attorney to represent any person 8 unable to afford counsel.” 28 U.S.C. § 1915(e)(1). Appointment of counsel under 9 28 U.S.C. § 1951(e)(1) is reserved for “exceptional circumstances.” Terrell v. 10 Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). In evaluating whether “exceptional 11 circumstances” exist, the Court considers “the likelihood of success on the merits 12 as well as the ability of the [plaintiff] to articulate his claims pro se in light of the 13 complexity of the legal issues involved.” Weygandt v. Look, 718 F.2d 952, 954 14 (9th Cir. 1983); see also Terrell, 935 F.2d at 1017. 15 In his motion, Plaintiff has made no effort to address the “exceptional 16 circumstances” requirement. Plaintiff contends, without explanation, “that this 17 case will become complex, if not already complex.” ECF No. 54 at 3. Having 18 reviewed the file, the Court concludes that exceptional circumstances are not 19 present. This is not a particularly complex case and Plaintiff has demonstrated 20 a strong ability to articulate his claims pro se. Plaintiff has engaged in motion ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL AND GRANTING DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER - 2 1 practice related to subpoenas and depositions (see, e.g., ECF No. 33, 38, 44). 2 At this juncture, the Court finds that Plaintiff has demonstrated a reasonable 3 ability to articulate his claims. While Plaintiff’s claims have survived initial screening, it does not appear 4 5 (at least at this early stage of the proceedings) that they are exceptionally 6 meritorious. The Court is unpersuaded that exceptional circumstances exist at 7 this time which would warrant the appointment of counsel. Plaintiff’s Motion, ECF No. 54, is denied with leave to re-file at a later 8 9 10 time. Plaintiff further states “[b]ecause Sutton believes he has located an 11 attorney to assist him in the prosecution of this case, Sutton needs an Order 12 from this Court, granting permission for the below attorney to get involved in 13 this civil action.” ECF No. 54 at 2. Plaintiff contends that an attorney from the 14 Human Rights Defense Center, in Lake Worth, Florida, may be interested in 15 assisting Plaintiff. If this attorney is engaged by Plaintiff, either retained or 16 agrees to represent Plaintiff pro bono, the attorney needs to follow the local 17 court rules set forth for entering a notice of appearance. No court order is 18 necessary. 19 20 ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL AND GRANTING DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER - 3 1 B. Defendants’ Motion for Protective Order (ECF No. 49) Defendants seek a protective order, relieving them of the obligation to 2 3 comply with Plaintiff’s discovery request that Plaintiff or his designee be 4 allowed to video-record mailroom operations at the prison at Walla Walla, 5 along with recording the process of “rejecting incoming/outgoing U.S. mail.” 6 ECF No. 49 at 2. Defendants raise two objections to Plaintiff’s request. First, the 7 8 mailroom is “outside the secured perimeter” (outside prison walls), which they 9 allege would require “unduly burdensome logistical planning” and consume an 10 inordinate amount of staff resources in order to have correctional officers 11 inspect the entire mail room and inventory and secure/remove any dangerous 12 items before Plaintiff could enter the area, have two guards transport Plaintiff 13 with the requisite security measures, and have two guards monitor Plaintiff 14 while in the mailroom. ECF No. 49 at 3 (citing Gonzalez Decl., ECF No. 50 at 15 2-3). 16 Second, Defendants contend the requested inspection exposes the 17 Washington State Penitentiary and other DOC prisons to significant security 18 risks, including: allowing Plaintiff to gather information regarding how mail is 19 inspected, the amount of time spent inspecting each piece of mail, the type of 20 testing (and the random nature of such testing) that the mailroom conducts on ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL AND GRANTING DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER - 4 1 incoming/outgoing mail for contraband (e.g. drugs, meth-soaked paper, coded 2 messages, gang communications, etc.), and allowing Plaintiff to identify and 3 learn about the overall systems to determine the system’s strengths and 4 weaknesses. ECF No. 49 at 3 (citing Gonzalez Decl., ECF No. 50 at 3-4). 5 Defendants are concerned this sensitive data could be spread among the other 6 inmates, which could lead to exploitation of the processes by inmates and 7 introduce contraband into the prison. Id. Defendants further contend that Plaintiff’s request is excessive, 8 9 irrelevant, and not proportional to the needs of this case. ECF No. 49 at 2. 10 Specifically, Plaintiff’s claim involves two outgoing letters that were rejected 11 by the mailroom in 2015, and alleged retaliation by prison staff. ECF No. 49 at 12 2-4. 13 Federal Rule of Civil Procedure 34 permits a party to “serve on any other 14 party a request within the scope of Rule 26(b) ... to permit entry onto designated 15 land or other property possessed or controlled by the responding party, so that the 16 requesting party may inspect, measure, survey, photograph, test, or sample the 17 property or any designated object or operation on it.” Fed. R. Civ. P. 34(a)(2). 18 19 20 However, the Court “may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense,” including one or more of the following: (1) prohibiting disclosure or ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL AND GRANTING DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER - 5 1 discovery; (2) conditioning disclosure or discovery on specified terms; (3) 2 preventing inquiry into certain matters; or (4) limiting the scope of disclosure or 3 discovery to certain matters. Fed. R. Civ. P. 26(c)(1); see also Razo v. Timec Co., 4 Inc., No. 15-CV-03414-MEJ, 2016 WL 1623938, at *2 (N.D. Cal. Apr. 21, 2016). 5 Following the recent amendments to the Federal Rules of Civil Procedure in 6 December 2015, Rule 26 now provides that a party may obtain discovery 7 “regarding any nonprivileged matter that is relevant to any party's claim or defense 8 and proportional to the needs of the case[.]” Fed. R. Civ. P. 26(b)(1). Factors that 9 must be considered in weighing proportionality include “the importance of the 10 issues at stake in the action, the amount in controversy, the parties’ relative access 11 to relevant information, the parties’ resources, the importance of the discovery in 12 resolving the issues, and whether the burden or expense of the proposed discovery 13 outweighs its likely benefit.” Razo v. Timec Co., Inc., No. 15-CV-03414-MEJ, 14 2016 WL 1623938, at *2 (N.D. Cal. Apr. 21, 2016). Discovery need not be 15 admissible in evidence to be discoverable. Id.; see also Salazar v. McDonald's 16 Corp., No. 14-CV-02096-RS (MEJ), 2016 WL 736213, at *2 (N.D. Cal. Feb. 25, 17 2016). 18 19 20 Moreover, Rule 26(c) confers “broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required.” See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984). To obtain a protective ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL AND GRANTING DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER - 6 1 order, the party resisting discovery or seeking limitations must, under Rule 26(c), 2 show good cause for its issuance. Meyer v. Schwarzenegger, No. CIVS06- 3 2584LKKGGHP, 2009 WL 1020838 at *1 (E.D. Cal. Apr. 14, 2009). “For good 4 cause to exist, the party seeking protection bears the burden of showing specific 5 prejudice or harm will result if no protective order is granted.” Phillips v. Gen. 6 Motors Corp., 307 F.3d 1206, 1210–11 (9th Cir. 2002); Meyer, No. CIVS06- 7 2584LKKGGHP, 2009 WL 1020838 at *1. “Broad allegations of harm, 8 unsubstantiated by specific examples or articulated reasoning, do not satisfy the 9 Rule 26(c) test.” Id. (citing Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 10 476 (9th Cir. 1992)). 11 Where otherwise discoverable information would pose a threat to the safety 12 and security of the prison or infringe upon a protected privacy interest, a need may 13 arise for the Court to balance interests in determining whether disclosure should 14 occur. See Fed. R. Civ. P. 26(c); Bishop v. Lopez, No. 115CV00273LJOSABPC, 15 2016 WL 1587080, at *1 (E.D. Cal. Apr. 20, 2016), reconsideration denied, No. 16 115CV00273LJOSABPC, 2016 WL 2625917 (E.D. Cal. May 9, 2016); see also 17 Garcia v. Clark, No. 1:10-CV-00447-LJO-DLB PC, 2012 WL 1232315, at *6 n.5 18 (E.D. Cal. Apr. 12, 2012) (noting inmate’s entitlement to inspect discoverable 19 information may be accommodated in ways which mitigate institutional safety 20 concerns); Robinson v. Adams, No. 1:08-cv-01380-AWI-BAM PC, 2012 WL ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL AND GRANTING DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER - 7 1 912746, at *2-3 (E.D. Cal. Mar. 16, 2012) (issuing protective order regarding 2 documents containing information which implicated the safety and security of the 3 prison); Orr v. Hernandez, No. CV-08-0472-JLQ, 2012 WL 761355, at *1-2 (E.D. 4 Cal. Mar. 7, 2012) (addressing requests for protective order and for redaction of 5 information asserted to risk jeopardizing safety and security of inmates or the 6 institution if released). 7 Defendants show good cause for issuance of a protection order. The 8 identified security concerns are clearly articulated and support limitations on the 9 type of discovery that Plaintiff seeks, i.e., Plaintiff’s ability to videotape and 10 11 observe the prison’s mail room procedures. Here, the Court finds that Plaintiff’s proposed discovery, inspection of the 12 prison mail room, exceeds the proportional needs of the case, given the narrow 13 scope of Plaintiff’s claim. Moreover, Plaintiff has alternative means available to 14 him to obtain relevant information regarding the handling of prison mail, including 15 requesting document production regarding the mail room procedures, 16 interrogatories, and seeking deposition testimony of individuals who work in the 17 mailroom. 18 19 20 ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL AND GRANTING DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER - 8 1 Defendants’ motion for a protective order, ECF No. 49, is granted. 2 IT IS SO ORDERED. The Clerk of Court shall enter this Order, and 3 4 5 6 forward copies to the parties. DATED November 7, 2016. s/ Mary K. Dimke Mary K. Dimke United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL AND GRANTING DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER - 9
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