Graham v. Jaffe et al

Filing 86

ORDER signed by Magistrate Judge Kendall J. Newman on 7/18/13 ORDERING that the 82 Motion to Appoint Counsel is DENIED without prejudice and the 84 Motion to conduct plaintiff's deposition by video conference is GRANTED subject to the requirements set forth in this order. (Manzer, C)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY R. GRAHAM,
Plaintiff,

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No. 2:08-cv-2533 GEB KJN P

Defendants.

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ORDER

vs.
JUBB, et al.,

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Plaintiff is a state prisoner proceeding pro se in an action brought under 42 U.S.C.

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§ 1983. While plaintiff was housed at the California Medical Facility, plaintiff filed a motion for

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appointment of counsel, and to modify the scheduling order. Defendants do not oppose

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plaintiff’s request to modify the scheduling order. On July 9, 2013, defendants filed a request to

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depose plaintiff by video-conference. On July 11, 2013, plaintiff filed a notice of change of

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address, stating that he is now housed at the California State Prison in Lancaster, California. The

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court addresses these requests below.

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Plaintiff requests that the court appoint counsel. District courts lack authority to require

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counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist.

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Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an

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attorney to voluntarily to represent such a plaintiff. See 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). When determining whether “exceptional circumstances” exist, the court must

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consider plaintiff’s likelihood of success on the merits as well as the ability of the plaintiff to

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articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v.

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Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to

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appoint counsel). The burden of demonstrating exceptional circumstances is on the plaintiff. Id.

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Circumstances common to most prisoners, such as lack of legal education and limited law library

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access, do not establish exceptional circumstances that warrant a request for voluntary assistance

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of counsel.
Having considered the factors under Palmer, the court finds that plaintiff has failed to

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meet his burden of demonstrating exceptional circumstances warranting the appointment of

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counsel at this time. Thus, plaintiff’s motion is denied without prejudice.
Defendants show good cause for conducting plaintiff’s deposition by videoconference.

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Defendant’s request is granted, subject to the following orders. First, the court reporter shall be

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present at the prison with plaintiff. Second, counsel for defendants shall work with the litigation

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coordinator at California State Prison, Lancaster, to ensure that plaintiff is in possession of his

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legal materials in advance of, and at, the deposition. Third, the video-conferenced deposition

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shall take place within the next thirty days. Fourth, either in person or during the

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videoconferenced proceeding, defendants’ counsel shall discuss with plaintiff the possibility of

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resolving this action without need for a settlement conference. Fifth, within fourteen days after

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the deposition, defendants’ counsel shall inform the court as to such efforts, and, if the parties

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were unable to agree to a resolution of this action, counsel shall advise the court whether the

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parties believe that a formal settlement conference would be beneficial. Upon receipt of this

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information, the court will issue an order setting a settlement conference, or issue a further

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scheduling order.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for the appointment of counsel (ECF No. 82) is denied without

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prejudice; and
2. Defendant’s motion to conduct plaintiff’s deposition by video-conference (ECF No.

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84) is granted subject to the requirements set forth above.

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DATED: July 18, 2013

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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