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Stewart v. Jovanovich

United States District Court, D. Montana, Helena Division

September 25, 2017

SAM JOVANOVICH, Defendant.[1]


          John Johnston, United States Magistrate Judge.

         Pending before the Court are Plaintiff Laurence Stewart's Third Motion to Appoint Counsel (Doc. 37), Motion for Extension of Time to Complete Discovery (Doc. 39), Motion to Compel (Doc. 41), Fourth Motion to Appoint Counsel (Doc. 52), Motion to Strike (Doc. 54), Second Motion to Compel (Doc. 56), Motion for Extension of Time to File a Reply (Doc. 65), Motion for Sanctions (Doc. 67). In addition, Defendant has filed Motion for Protective Order (Doc. 45) and a Motion to Strike Reply or Alternatively to File a Sur-Reply (Doc. 72).

         I. Motions to Appoint Counsel (Docs 37, 52)

         Mr. Stewart's prior motions for appointment of counsel have been denied. (Docs. 3, 9.) In his latest motions (Docs. 37, 52), he again indicates he is unable to obtain counsel, he has appealed the dismissal of some of his causes of action, [2]he needs to discover the names of the IPS officers in order to reinstate other claims, he lacks training in the law and research time, and the interests of justice would be best served if he were appointed counsel. (Doc. 38).

         As set forth in prior Orders denying Mr. Stewart's requests for counsel, in a civil rights case such as this, the Court can only request the voluntary assistance of counsel and can only do so under exceptional circumstances. 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). The test for exceptional circumstances requires the Court to evaluate the plaintiff's 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 v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Circumstances common to most prisoners, such as lack of legal education and limited law library access, do not establish exceptional circumstances that would warrant a request for voluntary assistance of counsel. Palmer, 560 F.3d at 970.

         Mr. Stewart has still not demonstrated the required exceptional circumstances. His remaining claim is not particularly complex and he has been able to effectively articulate his claims pro se as evidenced by his multiple motions pending before the Court. The difficulties Mr. Stewart lists are circumstances common to most prisoners that do not warrant appointment of counsel. The Court will not appoint counsel at this time.

         II. Motion for Extension (Doc. 39)

         Mr. Stewart seeks a 90-day extension of the discovery deadline. He argues he has not been able to confer with counsel for Defendant and believes counsels' actions are a purposeful attempt to run the time for discovery.

         The motion will be denied. Defendant has filed a motion for summary judgment and Mr. Stewart will be required to file a response. The remaining issue is a relatively straightforward and the Court does not see any justification to delay this matter further. If Mr. Stewart believes there is discoverable evidence essential to justify his opposition to summary judgment, he must describe such evidence in his response and explain by affidavit or declaration why the evidence is essential. See Fed.R.Civ.P. 56(d).

         III. Motions to Compel/ Motion for Protective Order (Docs. 41, 45, 56)[3]

         The Court first notes that Mr. Stewart failed to comply with Local Rule 26.3(c)(2) which provides:

         All motions to compel or limit discovery must:

(A) set forth the basis for the motion;
(B) certify that the parties complied with subsection (c)(1) or a description of the moving party's attempts to comply; and
(C) attach, as an exhibit:
(i) the full text of the discovery sought; and
(ii) the full text of the response.

         Whether or not Mr. Stewart properly conferred with counsel prior to filing his motions, he did not attach as an exhibit the full text of Defendant's response to his discovery requests in his first motion to compel. Defendant, however, attached his discovery responses to the response to the motion to compel. (Doc. 43-12.) Despite Mr. Stewart's failure to comply with the Court's Local Rule, in an effort to not delay this matter further, the Court will go to the merits of Mr. Stewart's motions.

         A party may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Fed.R.Civ.P. 26(b)(1).[4]

         A. Second Interrogatory

         In his second interrogatory, Mr. Stewart seeks:

Please list the names, titles, and your relationship to any current employee(s) of the Montana Department of Correction (MDOC) and it's [sic] subsidiaries (MSP, MWP, Etc.), that currenly [sic] are or ever were considered anything other than simply co-workers, to Sam Jovanovich. Please list multiple relationship types if applicable and include past relationships if applicable and not obvious inference of the current, ie. “former girlfriend and current wife” would just be “wife”.

(Doc. 43-12 at 2, ¶ 2.) Defendant Jovanovich objected on the grounds that the request was overbroad, burdensome, vague, privacy and confidentiality, and not calculated to lead to the discovery of admissible evidence. (Doc. 43-12 at 3.)

         Mr. Stewart argues he is seeking to expose the “good ol' boy” system because he believes Mr. Jovanovich has family and close friends in high places that have protected his misconduct. Defendant counters that this request is “an improper fishing expedition into Defendant's personal life, wholly removed from the subject matter at issue.” (Doc. 43 at 11.) The Court agrees. The sole issue remaining in this case is whether Jovanovich fired Mr. Stewart for submitting grievances. Jovanovich's relationships with other DOC staff is not reasonably calculated to lead to the discovery of admissible evidence. The motion to compel will be denied on this issue.

         B. Third ...

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