Elliott v. Carlon et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
BRADLEY KENT ELLIOTT,
Plaintiff,
v.
DONALD CARLON, DERRICK
MEDINA, SHANNON McCLOUD,
JEREMY HOUGH, and NANCY
DAHLSTROM,
Defendants.
Case No. 3:20-cv-00110-JMK
OMNIBUS ORDER RE: PENDING MOTIONS
Before the Court are pending motions at Dockets 55, 59, 60, 63, 66, and 67.
I. 	Motions Re: Reconsideration of Appointment of Counsel
At Docket 55, Plaintiff requests the Court to reconsider an unspecified prior
order 	denying 	the 	appointment 	counsel. 	Plaintiff 	argues 	that 	he 	needs 	an
experienced volunteer attorney, because this is a complex case.1 	Defendants
oppose the appointment of counsel at Docket 58. 	Plaintiff replied at Docket 60
asserting that he has shown a likelihood of success on the merits, thereby
qualifying for an appointment of counsel.2
1 See Docket 55.
2 Docket 60 was filed with the Court on a motion form; however, per the Local Civil Rule 7.1(c) a
reply is appropriate here.
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At 	Docket 	67, 	Plaintiff 	filed 	“Motion 	for 	the 	Supplemental 	for 	the
Reconsideration for the Appointment of Counsel,” which includes approximately
100 pages of exhibits. 	Plaintiff explains that this motion had been intended to be
a motion for summary judgment, but instead is submitted as a supplement to
Docket 55.3 Defendants did not respond.4
Local Civil Rule 7.1(d) governs supplemental briefing and factual materials.
A party must show good cause to supplement a briefed motion with additional
factual materials.5 “The motion must have the proposed factual materials attached
as an exhibit and address the reasons earlier filing was not possible or their
relevance was not appreciated. Such motions will not routinely be granted.”6 The
motion at Docket 67 does not articulate good cause why the exhibits provided were
not available at the time of filing Docket 55. Therefore, the Court cannot consider
the supplement in evaluating the merits of Docket 55.
Local Civil Rule 7.3(h) governs a motion for reconsideration. The Rule reads
as follows:
(1) 	A 	court 	ordinarily 	will 	deny 	a 	motion 	for
reconsideration absent a showing of one of the following:
(A) manifest error of the law or fact;
(B) discovery of new material facts not previously
available; or
3 Docket 67 at 1.
4 See Docket.
5 Local Civil Rule 7.1(d).
6 Id.
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(C) intervening change in the law
(2) A motion for reconsideration is limited to 5
pages, and must be filed and served:
(A) not later than 7 days after the entry of the order,
for motions asserted under subsection (1)(A); or
(B) within 14 days of the discovery or change in
law, for motions asserted under subsections (1)(B) or
(1)(C).
(3) No response to a motion for reconsideration
may be filed unless requested by the court. 	Unless
otherwise ordered, a response must be filed within 7 days
of entry of the order requesting a response and is limited
to 5 pages.
(4) No reply may be filed unless requested by the
court. 	Unless otherwise ordered, a reply must be filed
within 7 days of the order requesting a reply and is limited
to 5 pages.
Docket 55 does not specify an order for reconsideration and is overlength.
Furthermore, the Court did not issue an order seven days prior to Docket 55. On
procedural grounds, the motions at Docket 55 should be denied.
Even liberally construing Docket 55 as a new motion for the appointment of
counsel, the Court must deny Plaintiff’s request. 	The Court is sympathetic to
Plaintiff’s aliments.7 	However, the precedent that binds this Court is clear.
Generally, a person has no federal right to an appointed attorney in a civil action.8
7 See Docket 55 at 3.
8 See Turner v. Rogers, 564 U.S. 431, 441, 131 S. Ct. 2507, 2516 (2011) (“[T]he Sixth Amendment
does not govern civil cases.”); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).
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Under 28 U.S.C. § 1915(e)(1), a district court “may request an attorney to
represent any person unable to afford counsel.” 	However, a district court’s
decision to appoint counsel in a civil action is discretionary. 	In order to appoint
counsel,
[a] district court must determine whether a) there is a
likelihood of success on the merits; and b) the [litigant] is
unable to articulate his claims in light of the complexity of
the legal issues involved. 	None of these factors is
dispositive; 	rather 	they 	must 	be 	considered
cumulatively.9
A court may only appoint counsel pursuant to 28 U.S.C. § 1915(e)(1) under
“exceptional circumstances.”10 	Additionally, although the Court may request a
volunteer attorney in exceptional cases, it has no power to make a mandatory
appointment.11
Plaintiff litigates claims for unsafe conditions of confinement. The elements
of such a claim are as follows:
(1) The defendant made an intentional decision with
respect to the conditions under which the plaintiff was
confined; 	(2) 	Those 	conditions 	put 	the 	plaintiff 	at
substantial 	risk 	of 	suffering 	serious 	harm; 	(3) 	The
defendant did not take reasonable available measures to
abate that risk, even though a reasonable officer in the
circumstances would have appreciated the high degree
of 	risk 	involved—making 	the 	consequences 	of 	the
defendant's conduct obvious; and (4) By not taking such
measures, the defendant caused the plaintiff's injuries.12
9 Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014) (citing Palmer, 560 F.3d at 970).
10 Id.
11 Mallard v. U.S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296, 301–08 (1989).
12 Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016) (en banc); accord Russell
v. Lumitap, 31 F.4th 729, 739 (9th Cir. 2022).
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From the pleadings and Docket 55, it appears that there is some likelihood
of success on the merits.13 	However, the analysis lies at whether Plaintiff can
articulate 	his 	claims 	in 	terms 	of 	the 	elements 	of 	his 	claims. 	Plaintiff 	has
demonstrated that he is able to articulate his claims as a self-represented litigant.
His writing and descriptions are clear and articulate. 	Further, he references and
summarizes exhibits for the Court’s review.14 The first three elements of conditions
of confinement claims focus on the intent, knowledge, actions of a defendant.
Plaintiff briefly touched on these elements in his reply.15 Plaintiff’s medical history
and the publications on diesel fumes are relevant to the fourth element—proving
injury. However, Plaintiff’s injuries are a question of fact, not law. Therefore, these
records do not increase the legal complexity of Plaintiff’s claims. 	The Court finds
this case is not an “exceptional” one that necessitates the assistance of counsel.
Although 	section 	1915(e)(1) 	permits 	the 	Court 	to 	request 	a 	volunteer
attorney, this Court has no list of volunteer attorneys from which it may request
counsel to represent Plaintiff. The Court previously referred Plaintiff’s case to the
Federal Pro Bono Project and is currently advertising for a volunteer attorney. If a
volunteer attorney comes forward to accept Plaintiff’s case, the Court will appoint
counsel at that time.
13 The Court declines to consider the exhibits at Docket 67. Local Civil Rule 7.1(d).
14 See Dockets 55 & 60.
15 Docket 60 at 5.
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Accordingly, the Motion for the Supplemental for the Reconsideration for the
Appointment of Counsel at Docket 67 is DENIED for failing to show good cause as
required 	by 	Local 	Civil 	Rule 	7.1(d). 	Plaintiff’s 	Motion 	to 	Reconsider 	the
Appointment of Counsel at Docket 55 is DENIED. 	The Motion for Response to
Defendant’s Opposition Motion for Appointment of Counsel at Docket 60 is
DENIED AS MOOT, because it is a reply brief, not a separate motion, per Local
Civil Rule 7.1(c).
II. 	Motion to Join Cases
At Docket 59 is Plaintiff’s Motion to Join Cases (“Motion”). Plaintiff requests
the Court to join a civil case pending in Alaska Superior Court with this federal
action pursuant to Federal Rule of Civil Procedure 18(b).16 	Defendants oppose
the Motion as procedurally improper per Rules 15, 16, 18, and 20 of the Federal
Rules of Civil Procedure.17 Plaintiff did not reply.18 The Court takes judicial notice
of Elliott v. State of Alaska, Dept. of Corrections, et al., Case No. 3AN-22-
05249CI.19
16 Docket 59 at 1–2.
17 Docket 61 at 6–8.
18 See generally Docket.
19 Judicial notice is the “court’s acceptance, for purposes of convenience and without requiring a
party’s proof, of a well-known and indisputable fact; the court’s power to accept such a fact.”
BLACK’S LAW DICTIONARY (11th ed. 2019); see also Headwaters Inc. v. U.S. Forest Service, 399
F.3d 1047, 1051 n.3 (9th Cir. 2005) (“Materials from a proceeding in another tribunal are
appropriate for judicial notice.”) (internal quotation marks and citation omitted); see also Fed. R.
Evid. 201.
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Rule 18 of Federal Civil Procedure permits a party to add claims against a
previously 	named 	party, 	even 	if 	one 	of 	those 	claims 	is 	“contingent 	on 	the
disposition of the other.”20 As evidenced by the record in Elliott v. State of Alaska,
Dept. 	of 	Corrections, 	et 	al., 	Case 	No. 	3AN-22-05249CI 	and 	Defendants’
opposition, the remaining defendants in the state case differ from the defendants
in this action.21 Rule 18 does not permit the requested joinder.
Rule 20 of Federal Civil Procedure permits the addition of new defendants
to a civil action, if (1) the relief arises out of the same transactions or occurrences
and (2) there is a question of law or fact common to all defendants.22 “Permissive
joinder is to be liberally construed to promote the expeditious determination of
disputes, and to prevent multiple lawsuits.”23 Even if the requirements of Rule 20
are met, “a district court must examine whether permissive joinder would ‘comport
with the principles of fundamental fairness or would result in prejudice to either
side.”24 	This includes considering factors such as: 	“the possible prejudice that
may result to any of the parties in the litigation, the delay of the moving party in
seeking an amendment to his pleadings, the motive that the moving party has in
seeking such amendment, the closeness of the relationship between the new and
20 Fed. R. Civ. P. 18.
21 Docket 61 at 7; see also Docket 61-2–61-4.
22 Fed. R. Civ. P. 20.
23 Cuprite Mine Partners LLC v. Anderson, 809 F.3d 548, 552 (9th Cir. 2015).
24 Coleman v. Quaker Oats Co., 232 F.3d 1271, 1296 (9th Cir. 2000) (quoting Desert Empire Bank
v. Insurance Co. of N. Am., 623 F.2d 1371, 1375 (9th Cir. 1980).
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the old parties, the effect of an amendment on the court's jurisdiction, and the new
party's notice of the pending action.”25
As a preliminary matter, the Court does not find that the allegations
raised in Plaintiff’s state case arise out of the same transactions or occurrences or
share a common question of law or fact. However, even if the Court is incorrect in
this assessment, fundamental fairness prevents the joinder of new defendants to
this action. The Court granted Plaintiff an opportunity to amend his pleadings, but
he did not do so.26 	To permit joinder now would (1) require a showing of good
cause27 that is not present here; (2) delay the resolution of this action contrary to
judicial efficiency; and (3) be prejudicial to all defendants. Further, the Court notes
that many of Plaintiff’s claims and defendants in the state action were dismissed
without prejudice, permitting him to possibly file an amended complaint in his state
action, if state civil procedure permits, or to file a new action in federal court.
Accordingly, the Motion to Join Cases at Docket 59 is DENIED.
III. 	Motion to Reopen Discovery and DOC Sanctions
At Docket 63 is Plaintiff’s Motion to Reopen Discovery and DOC Sanctions
(“Motion”). 	Plaintiff requests the Court reopen discovery in order to obtain (1) his
medical records from September 2022 and (2) disclosure of a redacted name of
25 Desert Empire Bank, 623 F.2d at 1375.
26 See Dockets 25 & 26.
27 Fed. R. Civ. P. 16(d); see also Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607–11
(9th Cir. 1992) (discussing that amending a complaint after a district court has issued a scheduling
order is governed by Federal Rule of Civil Procedure Rule 16(b)); see also Morgal v. Maricopa
County Bd. of Sup’rs, 284 F.R.D. 452, 459 (9th Cir. 2012).
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an individual.28 In the same motion, Plaintiff alleges a Department of Corrections
officer, who is not a defendant in this case, intentionally destroyed a portion of his
legal materials. Plaintiff requests the Court order the preservation of any video of
this 	incident 	and 	issue 	sanctions 	against 	the 	Department 	of 	Corrections.29
Defendants oppose the Motion at Docket 64 asserting (1) Plaintiff may access his
medical records through Department of Corrections Policy and Procedure 807.06;
(2) the request for a redacted name is untimely and made with an insufficient basis
to override the confidentiality of prisoner records as established by the Alaska
Administrative Code 22.05.090 and 22.05.095; (3) no video exists related to
Plaintiff’s 	alleged 	exposure 	to 	fumes 	at 	Wildwood 	Correctional 	Center; 	and
(4) Plaintiff attempts to improperly amend his complaint with a new defendant and
new alleged conduct at a different correctional facility.
The Court adopts Defendants’ reasoning. 	Plaintiff may access his medical
records through an administrative request.30 	Should Plaintiff be unable to obtain
these documents through that channel, the Court may entertain an additional
motion. Plaintiff’s request for a redacted name previously in discovery provided by
Defendant lacks specificity and timeliness.31 To the extent that the Plaintiff needs
replacements of documents lost in transit, this is a matter to be directly addressed
28 Docket 67 at 1, 3.
29 Docket 67 at 2–3.
30 State of Alaska Department of Corrections, Policy & Procedure 807.06.
31 See Fed. R. Civ. P. 37; Docket 42.
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with 	counsel 	for 	Defendants. 	Lastly, 	Plaintiff’s 	concerns 	regarding 	Officer
Radlinski, 	video 	preservation, 	and 	sanctions 	cannot 	be 	addressed 	in 	this
proceeding, because (1) Officer Radlinski is not a defendant in this matter; (2) this
is a separate incident, and effectually, a new claim; and (3) the time to amend the
pleadings has passed.32 	Plaintiff may elect to plead those allegations and seek
relief in a separate civil action.
Accordingly, the Motion to Reopen Discovery and DOC Sanction is DENIED.
IT IS THEREFORE ORDERED:
1. 	Plaintiff’s Motion to Reconsider the Appointment of Counsel at Docket
55 is DENIED.
2. 	Plaintiff’s Motion to Join Cases at Docket 59 is DENIED.
3. 	Plaintiff’s Motion for Response to Defendant’s Opposition Motion for
Appointment of Counsel at Docket 60 is DENIED AS MOOT.
4. 	Plaintiff’s 	Motion 	to 	Reopen 	Discovery 	and 	DOC 	Sanction 	at
Docket 63 is DENIED.
5. 	Plaintiff’s Motion of Extension of Time to File at 66 is DENIED AS
MOOT 	per 	the 	Court’s 	order 	vacating 	dispositive 	deadlines 	at
Docket 65.
6. 	Plaintiff’s Motion for the Supplemental for the Reconsideration for the
Appointment of Counsel at Docket 67 is DENIED.
32 Docket 42 at 2 (Scheduling Order with amended pleadings deadline of April 29, 2021).
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7. 	In light of the resolution of these motions, the Court instructs the
parties file a joint status report within 30 days of this order with a
proposed dispositive motions deadline.
DATED at Anchorage, Alaska, this 23rd day of March, 2023.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
United States District Judge
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