Martin v. Yates et al

Filing 52

ORDER Denying 49 Motion for Continuance to Seek Depositions and Affidavit in Support Under Fed. R. Civ. P. 56(f); ORDER Denying 50 Motion to Appoint Counsel without Prejudice signed by District Judge Cindy K. Jorgenson on 02/22/2012. Response to Motion for Summary Judgment due by 3/6/2012. (Flores, E)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LAWRENCE A. MARTIN,
Plaintiff,

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vs.

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JAMES A. YATES, et al.,
Defendants.

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No. CV 1-08-01401-CKJ
ORDER

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Pending before this Court is Plaintiff’s Notice of Motion and Motion for Continuance
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to Seek Depositions and Affidavit in Support Under Fed. R. Civ. P. 56(f) [Doc. 49] and
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Notice of Motion and Motion for Appointment of Counsel and Affidavit in Support Under
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28 U.S.C. § 1915(e)(1) [Doc. 50].
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I. MOTION FOR DEPOSITIONS
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Plaintiff seeks additional time to obtain deposition testimony of prison officials
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pursuant to Rule 56(d), Federal Rules of Civil Procedure.1 This Court’s December 22,

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2011 Order states in relevant part:
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The Court shall extend discovery in this matter for the limited purpose of
allowing Plaintiff to complete any depositions that he deems necessary,
consistent with this Order. As such, Plaintiff will be given an additional

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Plaintiff cites Rule 56(f), Fed. R. Civ. P.; however, this Rule was amended in 2010. Rule
56(d) now contains “the provisions of former subdivision (f).” Fed. R. Civ. P. 56 adv. comm. n.
2010 Amendments.

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sixty (60) days from the date of this Order to complete depositions in this
matter.

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Order [Doc. 48] 4:18-21. Plaintiff has failed to offer any reason why additional time is
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required. Indeed, it would appear that Plaintiff did not even read this Court’s previous
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Order.2 As such, Plaintiff’s Notice of Motion and Motion for Continuance to Seek

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Depositions and Affidavit in Support Under Fed. R. Civ. P. 56(f) [Doc. 49] is denied.
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Plaintiff shall have ten (10) days from the date of this Order to submit his opposition to
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Defendants’ Motion for Summary Judgment [Doc. 46].3

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II. APPOINTMENT OF COUNSEL
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Plaintiff again seeks appointment of counsel [Doc. 50]. As this Court has
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previously stated, appointment of counsel under 28 U.S.C. § 1915(e)(1) is required only
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when “exceptional circumstances” are present. Terrell v. Brewer, 935 F.2d 1015, 1017
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(9th Cir. 1991). A court must consider both the likelihood of success on the merits and the

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ability of the petitioner to articulate his claims pro se given the complexity of his case.
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Id. Neither factor is dispositive, and both must be viewed together before a finding of
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exceptional circumstances can be made. Id.
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Plaintiff cites his inability to bear the costs of deposition expenses as grounds
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requiring appointment of counsel. Plaintiff had other discovery tools at his disposal, such
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as written interrogatories or requests for admission, but failed to use them. Moreover,
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there are only two Defendants remaining in this cause of action, and given potentially
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qualified immunity defenses, Plaintiff’s likelihood of success on the merits is
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underwhelming. There is no evidence before this Court to suggest the presence of
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The Court further notes that Defendants’ Opposition to Plaintiff’s Motion to Re-Open
Discovery and take Depositions [Doc. 51] is also devoid of reference to this Court’s December 22,
2011 Order [Doc. 48], suggesting that perhaps neither party actually read it.
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Although Plaintiff sought additional time for depositions, he did not request an extension
of time to respond to Defendants’ summary judgment motion. The Court’s December 22, 2011
Order [Doc. 48] directed that Plaintiff’s response was due on or before January 30, 2011.
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“exceptional circumstances” warranting appointment of counsel. As such, the Court will

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not appoint counsel at this time. Plaintiff’s Notice of Motion and Motion for

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Appointment of Counsel and Affidavit in Support Under 28 U.S.C. § 1915(e)(1) [Doc.

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50] is denied without prejudice.

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Accordingly, IT IS HEREBY ORDERED that:

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1) Plaintiff’s Notice of Motion and Motion for Continuance to Seek Depositions

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and Affidavit in Support Under Fed. R. Civ. P. 56(f) [Doc. 49] is DENIED;
2) Plaintiff’s Notice of Motion and Motion for Appointment of Counsel and
Affidavit in Support Under 28 U.S.C. § 1915(e)(1) [Doc. 50] is DENIED WITHOUT
PREJUDICE; and
3) Plaintiff shall submit his response to Defendants’ Motion for Summary
Judgment [Doc. 46] within ten (10) days of the date of this Order.
DATED this 22nd day of February, 2012.

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