Cortinas v. McCabe, et al.

Filing 36

ORDER (1) DENYING 21 Plaintiff's Motion for Permission to Proceed With Discovery; (2) DENYING 22 Plaintiff's Motion to Appoint Counsel; (3) DENYING 28 Plaintiff's Motion for Court Order; and (4) DENYING 33 Plaintiff's Motion for Permission to Conduct Discovery signed by Magistrate Judge Michael J. Seng on 6/1/2017. (Jessen, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

LARRY WILLIAM CORTINAS,

12
13
14
15

Plaintiff,

1:16-cv-0558 LJO MJS (PC)
ORDER
(1) DENYING PLAINTIFF’S MAY 5,
2017, MOTION FOR PERMISSION
TO PROCEED WITH DISCOVERY;

v.
CONALL MCCABE, et al.,

(2) DENYING PLAINTIFF’S MAY 5
2017, MOTION TO APPOINT
COUNSEL;

Defendants.

16

(3) DENYING PLAINTIFF’S MAY 25,
2017, MOTION FOR COURT
ORDER; AND

17
18

(4) DENYING PLAINTIFF’S MAY 30,
2017, MOTION FOR PERMISSION
TO CONDUCT DISCOVERY

19
20
21

(ECF NOS. 21, 22, 28, 33)

22
23
24

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
rights action pursuant to 42 U.S.C. § 1983. This case proceeds on Plaintiff’s First
Amended Complaint against Defendants E. Clark, O. Beregovskaya, P. Lenoir, and C.

25
McCabe on an Eighth Amendment medical indifference claim; against R. Vogel on an
26
Eighth Amendment excessive force claim; and against E. Clark, O. Beregovskaya, P.
27
Lenoir, C. McCabe, and R. Vogel on a Fourteenth Amendment equal protection claim.
28
1

1

(ECF No. 14.) Defendants filed an answer on May 19, 2017, and a Discovery and

2

Scheduling Order issued on May 22, 2017. (ECF Nos. 25, 27.)
Pending before the Court are a number of motions filed by Plaintiff: (1) a May 5,

3
4

2017, motion to proceed with discovery (ECF No. 21); (2) a May 5, 2017, motion to

5

appoint counsel (ECF No. 22); (3) a May 25, 2017, motion directing defendants to file an

6

answer (ECF No. 28); and (4) a May 30, 2017, motion for permission to conduct

7

discovery prior to Defendants’ answer (ECF No. 33).

8

I.

May 5, 2017, Discovery Motion
In the May 5, 2017, motion, Plaintiff moves the Court to conduct “discovery to

9
10

contest and/or respond to any likely challenges defendants may make to dismiss. The

11

above-entitled cause.” Defendants have not filed a motion to dismiss; instead, they filed

12

an answer. This motion will therefore be denied.

13

II.

14

May 5, 2017, Motion to Appoint Counsel
Also on May 5, 2017, Plaintiff filed a motion to appoint counsel on the grounds

15

that he is indigent, his incarceration affects his ability to litigate this action, the issues are

16

complex, and only an attorney could properly prepare this case for trial.

17

Plaintiff does not have a constitutional right to appointed counsel in this action,

18

Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an

19

attorney to represent plaintiff pursuant to 28 U.S.C. ' 1915(e)(1). Mallard v. United

20

States District Court for the Southern District of Iowa, 490 U.S. 296, 298, 109 S. Ct.

21

1814, 1816 (1989). In certain exceptional circumstances the court may request the

22

voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.

23

However, without a reasonable method of securing and compensating counsel, the court

24

will seek volunteer counsel only in the most serious and exceptional cases. In

25

determining whether Aexceptional circumstances exist, the district court must evaluate

26

both the likelihood of success of the merits [and] the ability of the [plaintiff] to articulate

27

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

28

quotation marks and citations omitted).
2

Here, the Court does not find the required exceptional circumstances. Even if it is

1
2

assumed that Plaintiff is not well versed in the law and that he has made serious

3

allegations which, if proved, would entitle him to relief, his case is not exceptional. This

4

Court is faced with similar cases almost daily. Further, at this early stage in the

5

proceedings, the Court cannot make a determination that plaintiff is likely to succeed on

6

the merits, and based on a review of the record in this case, the Court does not find that

7

plaintiff cannot adequately articulate his claims. Id. This motion will also be denied.

8

III.

May 25, 2017, Motion to Direct Defendants to Answer
On May 25, 2017, Plaintiff filed a request for an order directing Defendants to file

9
10

an answer. Since Defendants filed an answer the week before on May 19, 2017, this

11

motion will be denied.

12

IV.

May 30, 2017, Motion for Permission to Conduct Discovery
In the May 30, 2017, motion for permission to conduct discovery, Plaintiff seeks

13
14

leave to conduct discovery prior to the filing of Defendants’ answer. Again, since

15

Defendants have now already answered and a Discovery and Scheduling Order has

16

issued, this request will be denied as moot.

17

V.

Conclusion

18

Based on the foregoing, IT IS HEREBY ORDERED that:

19

1. Plaintiff’s May 5, 2017, motion (ECF No. 21) is DENIED;

20

2. Plaintiff’s May 5, 2017, motion to appoint counsel (ECF No. 22) is DENIED;

21

3. Plaintiff’s May 25, 2017, motion (ECF No. 28) is DENIED; and

22

4. Plaintiff’s May 30, 2017, motion (ECF No. 33) is DENIED.

23
24
25

IT IS SO ORDERED.
Dated:

June 1, 2017

/s/

26

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

27
28
3