Mitchell v. Snowden et al

Filing 64

ORDER signed by Magistrate Judge Dale A. Drozd on 10/05/11 ordering plaintiff's motion for reconsideration of the court's order denying him appointment of counsel construed as a renewed motion for appointment of counsel 62 is denied. Pla intiff's motion for an extension of time to conduct discovery 62 is granted. The parties may conduct discovery until 01/06/12. All pretrial motions, except motions to compel discovery, shall be filed on or before 03/09/12. Pretrial conferen ce and trial dates will be set, as appropriate, following adjudication of any dispositve motion or the expiration of time for filing such a motion. The remainder of the discovery and scheduling order filed on 05/27/11 remains in effect. (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,

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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.

ORDER
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Plaintiff is a state prisoner proceeding pro se with this civil rights action. Under

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the court’s scheduling order, the parties were required to complete discovery by September 2,

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2011, and file any dispositive motions on or before November 28, 2011. On August 30, 2011,

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the defendants filed a motion to modify the scheduling order and informed the court that they

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have been unable to depose plaintiff because his psychiatric condition deteriorated, and he was

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being held in an inpatient mental health unit where he was without access to his legal and

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personal property. Good cause appearing, the court granted defendants’ motion and vacated the

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deadlines for discovery and dispositive motions. Defendants have since filed a status report with

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the court explaining that plaintiff’s mental health condition has improved and he is now housed

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at Pelican Bay State Prison and is participating in the Enhanced Outpatient Program. Since

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plaintiff is no longer receiving inpatient care, he is now able to participate in a video deposition.
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In accordance with the Local Rules, plaintiff has filed a notice of change of

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address with the court. Therein, he asks the court to reconsider its order denying his motion for

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appointment of counsel and also asks for an extension of time to conduct discovery in light of his

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recent hospitalization for mental health issues. As to plaintiff’s motion for reconsideration of its

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order denying him appointment of counsel, the court has construed plaintiff’s motion as a

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renewed motion for appointment of counsel. As the court previously advised plaintiff, the

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

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

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298 (1989). In certain exceptional circumstances, the district court may request the voluntary

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assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017

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(9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (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 to

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exist at this time.

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As to plaintiff’s motion for an extension of time to conduct discovery, the court

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finds that there is good cause to re-open discovery and modify the scheduling order in this case.

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See Fed. R. Civ. P. 16(f); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir.

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1992). Specifically, plaintiff as well as defendants have demonstrated that discovery could not

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be completed in the four months allotted for that phase of the litigation in the court’s scheduling

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order due to plaintiff’s hospitalization. Accordingly, the court will now re-set a schedule for this

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litigation.
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Good cause appearing, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for reconsideration of the court’s order denying him

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appointment of counsel construed as a renewed motion for appointment of counsel (Doc. No. 62)

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is denied;

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2. Plaintiff’s motion for an extension of time to conduct discovery (Doc. No. 62)
is granted;

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3. The parties may conduct discovery until January 6, 2012. Any motions

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necessary to compel discovery shall be filed by that date. All requests for discovery pursuant to

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Fed. R. Civ. P. 31, 33, 34 or 36 shall be served not later than sixty days prior to that date;

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4. All pretrial motions, except motions to compel discovery, shall be filed on or

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before March 9, 2012. Motions shall be briefed in accordance with paragraph 7 of this court’s

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order filed March 18, 2010;

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5. Pretrial conference and trial dates will be set, as appropriate, following
adjudication of any dispositive motion, or the expiration of time for filing such a motion; and

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6. The remainder of the discovery and scheduling order filed on May 27, 2011,

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remains in effect.

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DATED: October 5, 2011.

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DAD:9
mitc1658.41mod(2)

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