Pamer v. Schwarzenegger et al

Filing 112

ORDER signed by Magistrate Judge Craig M. Kellison on 9/12/2011 DENYING 104 Plaintiffs motion for the appointment of counsel; dfts' 108 motion to strike pltf's motion to compel is GRANTED; pltf's 107 motion to compel is STRICKEN as prematurely filed; Both motions 110 , 111 for additional time to complete discovery are GRANTED; Any outstanding discovery responses shall be served on the propounding party within 30 days of the date of this order; pltf's deposition shall be completed within 30 days of the date of this order; and all other deadlines in the scheduling order are confirmed.(Reader, L)

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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 PAMER,

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Plaintiff,

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No. CIV S-07-1902-MCE-CMK-P

vs.

ORDER

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ARNOLD SCHWARZENEGGER, et al.,

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Defendants.

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Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant

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to 42 U.S.C. § 1983. Pending before the court are several motions related to discovery in this

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matter. Plaintiff objects to additional time the court allowed defendants to respond to his

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discovery requests and moves to compel the responses (Doc. 107), defendants move to strike that

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motion based on this court’s prior order (Doc. 108), and both parties request additional time to

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conclude discovery in this matter (Docs. 110, 111). In addition, plaintiff moves for the

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appointment of counsel and the return of legal property (Doc. 104).

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First, as to plaintiff’s request for the appointment of counsel, the United States

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Supreme Court has ruled that district courts lack authority to require counsel to represent

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indigent prisoners in § 1983 cases. See Mallard v. United States Dist. Court, 490 U.S. 296, 298

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(1989). In certain exceptional circumstances, the court may request the voluntary assistance of

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counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.
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1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). In the present case, the

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court does not at this time find the required exceptional circumstances.

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Second, as to plaintiff’s motion to compel, the court agrees with defendants’

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assessment. Defendants had requested additional time to respond to plaintiff’s discovery

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requests. That request was granted, and the court allowed defendants until August 19, 2011, to

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provide their responses. Plaintiff’s motion to compel was filed prior to the new deadline, and

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therefore is premature. While the court notes plaintiff’s objections to the addition of time, that

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objection is overruled. If defendants failed to provide their responses by the new deadline of

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August 19, 2011, plaintiff may renew his motion to compel. However, the pending motion is

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stricken as filed prematurely.

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Third, as for plaintiff’s motion to recover his legal property, it appears from the

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other filings that defense counsel intervened1 and was able to assist plaintiff in obtaining his legal

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property in order to complete the discovery. It appears, therefore, that this motion is moot as

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plaintiff has been reunited with his legal property. If that is not the case, plaintiff may file a new

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request, and the court will request defense counsel to again assist, if possible, in making sure

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plaintiff has his legal property in order to effectively move this case along.

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Finally, both sides agree that additional time is required to complete discovery in

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this matter. It is unclear if there are outstanding discovery requests awaiting responses from

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either side. If there are, the court will extend the deadline for serving such responses by 30 days.

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As it appears plaintiff has now been reunited with his legal property, 30 days should be sufficient

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time for him to send his responses to the outstanding discovery requests to defendants. Similarly,

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due to plaintiff’s transfer, defendants request additional time to conduct plaintiff’s deposition.

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This request is also granted, and said deposition shall occur within the next 30 days. No request

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has been made to extend the time allowed for either motions to compel or dispositive motions.

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The court thanks counsel for its assistance in this matter, and encourages counsel
to continue in such manner so as to avoid any further delays in this case.
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According to the scheduling order, the parties have 60 days from the original discovery cutoff

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date to file any necessary motions to compel, and 90 days to file dispositive motions. The court

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sees no reason to extend those deadlines at this time. The deadlines for filing such motions,

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therefore, remain as set: November 7, 2011, for any motions to compel and December 6, 2011,

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for any dispositive motions. Other than the currently outstanding discovery issues addressed

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herein, no new discovery shall be propounded as the discovery deadline has now passed. This

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order is only allowing additional time to complete the outstanding discovery, and shall not be

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construed as allowing additional time for new discovery requests to be made.

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s motion for the appointment of counsel (Doc. 104) is denied;

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2.

Defendants’ motion to strike plaintiff’s motion to compel (Doc. 108) is

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Plaintiff’s motion to compel (Doc. 107) is stricken as prematurely filed;

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Both motions for additional time to complete discovery (Docs. 110, 111)

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Any outstanding discovery responses shall be served on the propounding

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granted;

are granted;

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party within 30 days of the date of this order;

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Plaintiff’s deposition shall be completed within 30 days of the date of this

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All other deadlines in the scheduling order are confirmed.

order; and

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DATED: September 12, 2011
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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