Mitchell v. Snowden et al

Filing 86

ORDER signed by Magistrate Judge Dale A. Drozd on 06/21/12 ordering plaintiff's motion for extension of time to conduct discovery 77 is denied. Plaintiff's motion for appointment of counsel 77 is denied. (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, a state prisoner proceeding pro se, has filed this civil rights action

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seeking relief under 42 U.S.C. § 1983. Pending before the court is plaintiff’s motion for an

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extension of time to conduct discovery.

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On May 27, 2011, this court issued a discovery and scheduling order. Pursuant to

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the order, the parties were allowed to conduct discovery until September 2, 2011. On August 30,

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2011, the defendants filed a motion to modify the scheduling order and informed the court that

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they had been unable to depose plaintiff because his psychiatric condition had deteriorated, and

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

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personal property. The court granted defendants’ motion and vacated the deadlines for discovery

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and dispositive motions but instructed to defense counsel to keep the court apprised of plaintiff’s

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condition. Within a month, defendants filed a status report informing the court that plaintiff’s
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mental health condition had improved and that he was now housed at Pelican Bay State Prison

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and was participating in the Enhanced Outpatient Program. On October 6, 2012, the court issued

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a new discovery and scheduling order and allowed the parties to conduct discovery until January

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6, 2012. Finally, on November 10, 2011, plaintiff filed a motion for an extension of time to

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conduct discovery explaining that he had not received access to his legal and personal property

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since his transfer to Pelican Bay State Prison and was unable to meet the new discovery deadline

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established by the court. Defendants did not oppose plaintiff’s motion and informed the court

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that as of November 3, 2011, plaintiff had received all allowable legal and personal property. On

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December 22, 2011, the court issued the latest discovery and scheduling order in this case and

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allowed the parties to conduct discovery until March 30, 2012.

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In plaintiff’s pending motion for an extension of time to conduct discovery, he

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reiterates that he has experienced both medical and mental health challenges while attempting to

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prosecute this action. He also states that he believed he would be successful in retaining counsel

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to assist him with discovery but learned recently that he would not be able to do so. It is well

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established that a party must show good cause to modify a scheduling order. See Fed. R. Civ. P.

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16(b); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992). Plaintiff

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has failed to demonstrate good cause in support of his request to modify the scheduling order in

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this case. The court has provided the parties with more than ample time to conduct discovery.

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Plaintiff has not explained with adequate specificity why he could not complete discovery in the

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time allotted in this case or what discovery he still needs to conduct. Although the court is

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sympathetic to plaintiff’s ongoing medical and mental health conditions, the court cannot allow

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discovery in this case to carry on indefinitely. Moreover, the court notes that this civil action was

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commenced on July 18, 2008 and has now been pending before the court for almost four years.

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In this instance, plaintiff has not made the requisite showing to extend the discovery deadline.

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Accordingly, the court will deny plaintiff’s motion.

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Plaintiff has also requested the appointment of counsel. As the court previously

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advised plaintiff, 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 to

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exist at this time.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for an extension of time to conduct discovery (Doc. No. 77)

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is denied; and

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2. Plaintiff’s motion for appointment of counsel (Doc. No. 77) is denied.
DATED: June 21, 2012.

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