Boyd v. Etchebehere et al

Filing 44

ORDER Denying Plaintiff's 42 Motion to Appoint Counsel and 43 Motion for Protective Order signed by Magistrate Judge Stanley A. Boone on 11/05/2015. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CURTIS BOYD,

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Plaintiff,
v.
C. ETCHEBEHERE,

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Defendant.

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Case No. 1:13-01966-LJO-SAB (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR APPOINTMENT OF COUNSEL AND
MOTION FOR PROTECTIVE ORDER
[ECF Nos. 42, 43]

Plaintiff Curtis Boyd is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
On November 2, 2015, Plaintiff filed a motion for the appointment of counsel, along with a

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separate motion for a protective order. (ECF Nos. 42, 43.) Based on the nature of Plaintiff’s motions,

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the Court finds an opposition unnecessary and the motions are deemed submitted. Local Rule 230(l).

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I.

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DISCUSSION

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A.

Request for Appointment of Counsel

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There is no constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d

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1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to represent plaintiff pursuant to

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28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 490

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U.S. 296, 298 (1989). However, in certain exceptional circumstances the court may request the

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voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.
Without a reasonable method of securing and compensating counsel, the court will seek

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volunteer counsel only in the most serious and exceptional cases. In determining whether

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“exceptional circumstances exist, the district court must evaluate both the likelihood of success on the

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merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the

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legal issues involved.” Id. (internal quotation marks and citations omitted). The burden of

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demonstrating exceptional circumstances is on the plaintiff. Palmer v. Valdez, 560 F.3d 965, 970 (9th

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Cir. 2009). Circumstances common to most prisoners, such as lack of legal education and limited law

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library access, do not establish exceptional circumstances that warrant a request for voluntary

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assistance of counsel.
In the present case, the Court does find that neither the interests of justice nor exceptional

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circumstances warrant appointment of counsel at this time. LaMere v. Risley, 827 F.2d 622, 626 (9th

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Cir. 1987); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). Plaintiff seeks the appointment of

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counsel based on his indigent status, the limitations on his ability to litigate due to his imprisonment,

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the potential of presenting conflicting testimony at any trial in this case, and the need for advice from

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counsel during his scheduled deposition. Plaintiff’s circumstances are no different than any other

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prisoner, and Plaintiff has failed to demonstrate exceptional circumstances to warrant the appointment

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of voluntary counsel in this action. While a pro se litigant may be better served with the assistance of

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counsel, so long as a pro se litigant, such as Plaintiff in this instance, is able to “articulate his claims

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against the relative complexity of the matter,” the “exceptional circumstances” which might require

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the appointment of counsel do not exist. Rand v. Rowland, 113 F.3d at 1525 (finding no abuse of

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discretion under 28 U.S.C. § 1915(e) when district court denied appointment of counsel despite fact

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that pro se prisoner “may well have fared better-particularly in the realm of discovery and the securing

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of expert testimony.”) Accordingly, Plaintiff’s motion for appointment of counsel must be DENIED.

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B.

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Plaintiff seeks a protective order under Federal Rules of Civil Procedure 26(c)(1) and 30(a) to

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Protective Order

prevent Defendant from taking his deposition.
Plaintiff indicates that he received a Notice of deposition to take place on November 17, 2015.

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Plaintiff contends that he can only be deposed upon leave of the Court on such terms as the Court

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prescribes. Plaintiff is mistaken. Pursuant to the September 18, 2014, discovery and scheduling order,

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the parties were specifically advised as follows:

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Pursuant to Federal Rule of Civil Procedure 30(a)(2)(B), Defendant may depose
Plaintiff and any other witness confined in a prison upon condition that, at least
fourteen (14) days before such a deposition, Defendant serves all parties with the notice
required by Federal Rule of Civil Procedure 30(b)(1). Pursuant to Federal Rule of Civil
Procedure 30(b)(4), the parties may take any deposition under this section by video
conference without a further motion or order of the Court. Nothing herein forecloses a
party from bringing a motion for a protective order pursuant to Federal Rule of Civil
Procedure 26(c)(1) if necessary.
(ECF No. 14, Order at 2:4-9.)
Rule 26 of the Federal Rules of Civil Procedure provides that:
A party or any person from whom discovery is sought may move for a protective order
in the court where the action is pending-or as an alternative on matters relating to a
deposition… The court may, for good cause, issue an order to protect a party or person
from annoyance, embarrassment, oppression, or undue burden or expense….
Fed. R. Civ. P. 26.
Plaintiff seeks a protective order based on his claim that he is entitled to appointment of

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counsel; however, Plaintiff’s request must be denied for the reasons stated above in section A.

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Plaintiff has simply failed to carry his burden to demonstrate that good cause exists for issuance of a

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protective order. Plaintiff initiated this action and is required to respond to discovery requests from

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Defendant. Plaintiff is forewarned that the failure to attend a properly noticed deposition may result in

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an order requiring Plaintiff to pay Defendant the reasonable expenses for attending the deposition,

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including attorney’s fees. Fed. R. Civ. P. 30(g). Plaintiff may also be sanctioned for failing to attend

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a properly noticed deposition. Fed. R. Civ. P. 37(d). Sanctions may include an order dismissing this

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action. Fed. R. Civ. P. 37(b)(2)(A)(v). Plaintiff may not delay a deposition by filing frivolous

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requests to postpone the deposition.

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II.

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ORDER

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Based on the foregoing, it is HEREBY ORDERED that:

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Plaintiff’s motion for the appointment of counsel is DENIED; and

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Plaintiff’s motion for a protective order is DENIED.

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IT IS SO ORDERED.

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Dated:

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November 5, 2015
UNITED STATES MAGISTRATE JUDGE

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