Tolbert v. Colley

Background

Joel Tolbert, a California prisoner proceeding without an attorney, brought this civil-rights action against the Antioch Police Department, its chief, officers James Colley and James Perkinson, and Contra Costa County Detention Health Service (CCCDHS). The operative pleading was the second amended complaint. All defendants except CCCDHS had been served and appeared.

The order addressed three motions filed by Tolbert: a motion to withdraw his motion to compel, a motion to strike the served defendants’ reply to their opposition to a summary-judgment motion, and a motion for appointment of counsel.

Service on CCCDHS

The court previously ordered service on CCCDHS, but the Clerk had not issued a summons. The court ordered the Clerk to issue one and directed the United States Marshal to serve CCCDHS, without requiring prepayment of fees, with the summons, the second amended complaint and attachments, and specified service orders.

The court directed CCCDHS to file an answer under the Federal Rules of Civil Procedure. To expedite the case, it ordered CCCDHS to file a summary-judgment motion or other dispositive motion by February 7, 2025, and required the parties to follow specified deadlines for opposition and reply briefs. The court also required the defendant to provide the notice concerning summary judgment required by the cited Ninth Circuit authority.

Motion to withdraw

The court found good cause and noted that the defendants did not oppose the request. It granted Tolbert’s motion to withdraw his motion to compel.

Motion to strike

Tolbert asked the court to strike the defendants’ reply to their opposition to summary judgment, arguing that the reply relied on tampered evidence and false contentions. The court explained that Federal Rule of Civil Procedure 12(f) permits striking certain material from a pleading, but that a reply concerning a summary-judgment motion is not a pleading under Rule 7(a). The court therefore held that the reply could not be stricken under Rule 12(f) or any other ground identified by the court and denied the motion to strike.

The court stated that, to the extent Tolbert challenged new evidence submitted with the reply, it would consider those arguments as objections to reply evidence under Civil Local Rule 7-3(d)(1) when reviewing the summary-judgment briefing.

Motion for appointment of counsel

The court explained that there is no general right to appointed counsel in a civil case. Appointment under 28 U.S.C. § 1915 is discretionary and requires exceptional circumstances. Tolbert cited limited access to a law library, copy machine, and subpoenas, but the court found that he had not shown what claims, arguments, or evidence he could not present.

The court also noted that Tolbert had litigated the case vigorously, amended his pleadings twice, submitted hundreds of pages of exhibits, and obtained subpoenas on several occasions. It stated that he could request extensions by explaining the circumstances requiring them and that his concerns about conducting a trial alone were premature because the case was not ready for trial. The court denied the motion for appointment of counsel and stated that it would reconsider the issue on its own if a trial later became necessary.

Disposition

The court ordered service on CCCDHS, granted the motion to withdraw, and denied the motions to strike and for appointment of counsel. The order resolved docket numbers 105, 121, and 123. It did not decide the merits of the underlying civil-rights claims.