Tate v. Cate et al

Filing 44

ORDER Denying Plaintiff's Second Motion for Appointment of Counsel 41 ; ORDER Denying Plaintiff's Request for Deposition Information 43 , signed by Magistrate Judge Jennifer L. Thurston on 5/11/11. (Gonzalez, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LARRY TATE,

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Plaintiff,

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Case No. 1:09-cv-00770 JLT (PC)
ORDER DENYING PLAINTIFF’S SECOND
MOTION FOR APPOINTMENT OF
COUNSEL
(Doc. 41)

vs.
MATTHEW CATE, et al.,

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ORDER DENYING PLAINTIFF’S REQUEST
FOR DEPOSITION INFORMATION

Defendants.

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(Doc. 43)
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action

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pursuant to 42 U.S.C. § 1983. Plaintiff has two motions pending before the Court.

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I.

MOTION FOR APPOINTMENT OF COUNSEL

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On May 6, 2011, Plaintiff filed a motion seeking appointment of counsel. (Doc. 41) This is the

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second motion Plaintiff has field in this regard. (Doc. 24) In its December 21, 2010 order denying

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appointment of counsel, the Court advised Plaintiff that he does not have a constitutional right to

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appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and that the

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Court cannot require an attorney to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v.

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United States District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). (Doc. 25)

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Likewise, the Court notified Plaintiff that appointment of counsel may occur only in certain exceptional
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circumstances. Rand, 113 F.3d at 1525. Finally, the Court told Plaintiff that the Court will appoint

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counsel only after evaluating “the likelihood of success on the merits [and] the ability of the [plaintiff]

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to articulate his claims pro se in light of the complexity of the legal issues involved.” Id. (internal

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quotations and citations omitted).

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Here, Plaintiff merely recites his belief that he is entitled to counsel in order to further based upon

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the constitutional rights of due process and equal protection. (Doc. 41) As the Court notified Plaintiff

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previously however, the Constitution does not guarantee him appointment of counsel in a civil litigation

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that he initiated. Moreover, the Court finds that this case is not one supporting a finding of exceptional

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circumstances. Accordingly, Plaintiff’s second motion for appointment of counsel is DENIED.

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II.

REQUEST FOR DEPOSITION INFORMATION

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On May 6, 2011, Plaintiff also filed a request for information regarding the time and manner in

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which he will be deposed by Defendants. Plaintiff is advised in this regard that the Court plays no role

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in scheduling the parties’ depositions. This is a matter to be decided by the parties. Defendants, as the

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parties seeking the deposition in this case, are required to provide Plaintiff reasonable written notice as

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to when and where the deposition will take place. See Fed. R. Civ. P. 30(b)(1).

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Accordingly, Plaintiff’s request for deposition information will be denied.
III.

CONCLUSION

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In accordance with the above, it is HEREBY ORDERED that:

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1.

Plaintiff’s May 6, 2011 motion for appointment of counsel (Doc. 41) is DENIED; and

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2.

Plaintiff’s May 6, 2011 request for deposition information (Doc. 43) is DENIED.

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IT IS SO ORDERED.

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Dated: May 11, 2011
9j7khi

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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