Michael A. Washington v. Hernandez et al

Filing 30

ORDER DENYING Plaintiff's Motion for the Appointment of Counsel 28 ; ORDER DENYING Plaintiff's Motion to Extend the Discovery 29 , signed by Magistrate Judge Barbara A. McAuliffe on 4/23/2018. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL A. WASHINGTON,

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Plaintiff,
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vs.
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R. HERNANDEZ, et al.,
Defendants.

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Case No.: 1:16-cv-01439-LJO-BAM (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR THE APPOINTMENT OF COUNSEL
[Doc. No. 28]
ORDER DENYING PLAINTIFF’S MOTION
TO EXTEND THE DISCOVERY
DEADLINE
[Doc. No. 29]

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Plaintiff Michael A. Washington is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This case proceeds on Plaintiff’s

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claim for excessive force in violation of the Eighth Amendment against Defendants Hernandez,

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Stane, Stinson, Chambers, and Denney.

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Currently before the Court are Plaintiff’s (1) motion for the appointment of counsel (Doc.

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No. 28), and (2) motion for an extension of the discovery deadline (Doc. No. 29), both filed on

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April 19, 2018. Although Defendants have not responded to these motions, the Court finds that

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they will not be prejudiced by their immediate consideration, and no response is required. Local

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Rule 230(l).

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I.

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Plaintiff seeks the appointment of counsel, stating in support that he cannot afford a

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Motion for Appointment of Counsel

lawyer and proceeds in forma pauperis in this action, that his imprisonment limits his ability to

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litigate, that he has limited law library access, and that the issues in his case are complex and

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would be better presented by counsel.

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

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

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to represent him pursuant to 28 U.S.C. § 1915(e)(1), Mallard v. United States District Court for

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the Southern District of Iowa, 490 U.S. 296, 298, 109 S. Ct. 1814, 1816 (1989). However, in

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certain exceptional circumstances the Court may request the voluntary assistance of counsel

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

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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

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

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complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted).

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In the present case, the Court does not find the required exceptional circumstances. Even

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

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

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faced with similar cases almost daily. Further, at this stage in the proceedings, the Court cannot

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find any likelihood of success on the merits. Also, based on a review of the record in this case,

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the Court does not find that Plaintiff cannot adequately articulate his claims.

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Accordingly, Plaintiff’s motion seeking the appointment of counsel will be denied,

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without prejudice.

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II.

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By this Court’s September 12, 2017 discovery and scheduling order, the discovery

Motion for Extension of Discovery Deadline

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deadline in this case is May 12, 2018. (Doc. No. 16.) Plaintiff seeks to extend that deadline

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because he has not had access to the law library since the end of February due to a housing

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transfer and the absence of the librarian. (Doc. No. 29.)

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“The district court is given broad discretion in supervising the pretrial phase of litigation,
and its decisions regarding the preclusive effect of a pretrial order . . . will not be disturbed

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unless they evidence a clear abuse of discretion.” Johnson v. Mammoth Recreations, Inc., 975

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F.2d 604, 607 (9th Cir. 1992) (citation and internal quotation marks omitted). In general, the

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pretrial scheduling order can only be modified “upon a showing of good cause.” Id. at 608 (citing

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Fed. R. Civ. P. 16(b)).

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Here, the Court is unable to find good cause based on Plaintiff’s motion. Plaintiff does

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not state what discovery or discovery motions that he seeks to complete. He does not explain

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why that discovery could not be completed by the end of the discovery deadline, nor how much

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additional time is needed. The Court also cannot determine whether Plaintiff has been diligent in

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attempting to complete his discovery by the deadline. As a result, his motion will be denied.

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III.

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For the reasons explained above, it is hereby ordered that:

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1.

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Conclusion and Order

Plaintiff’s motion for the appointment of counsel, filed on April 19, 2018 (Doc.

No. 28) is denied, without prejudice; and
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Plaintiff’s motion for an extension of the discovery deadline, filed on April 19,

2018 (Doc. No. 29), is denied.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

April 23, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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