Mitchell v. Snowden et al
Filing
59
ORDER signed by Magistrate Judge Dale A. Drozd on 08/10/11 denying 58 Motion to Appoint Counsel and for extension of time to conduct discovery. (Plummer, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MICHAEL JEROME MITCHELL,
Plaintiff,
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vs.
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No. CIV S-08-1658 JAM DAD P
SNOWDEN, et al.,
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Defendants.
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ORDER
Plaintiff, a state prisoner proceeding pro se with a civil rights action, has
requested appointment of counsel.
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The United States Supreme Court has ruled that district courts lack authority to
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require counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist.
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Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may
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request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v.
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Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36
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(9th Cir. 1990).
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The test for exceptional circumstances requires the court to evaluate the plaintiff’s
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likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in
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light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328,
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1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances
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common to most prisoners, such as lack of legal education and limited law library access, do not
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establish exceptional circumstances that would warrant a request for voluntary assistance of
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counsel. In the present case, the court does not find the required exceptional circumstances.
Plaintiff also appears to request an extension of time to conduct discovery. Under
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the court’s May 27, 2011, discovery and scheduling order, the parties may conduct discovery
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through September 2, 2011. Plaintiff is advised that in the absence of good cause, the court will
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not modify the scheduling order in this case. See Fed. R. Civ. P. 16(f); Johnson v. Mammoth
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Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992). Good cause exists when the moving
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party demonstrates that he could not meet a deadline despite exercising due diligence. Id. at 609.
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Here, plaintiff has not shown why discovery can not be completed in the four months allotted in
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the court’s scheduling order. Nor has he demonstrated good cause to extend the discovery
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deadline.
Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for appointment
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of counsel and request for an extension of time to conduct discovery (Doc. No. 58) is denied.
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DATED: August 10, 2011.
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DAD:9:mp
mitc1658.31
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