Warner v. Cate et al

Filing 56

ORDER signed by Magistrate Judge Edmund F. Brennan on 3/5/2012 DENYING plaintiff's 51 request for appointment of counsel and his 52 request for an extension of time. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EARL WARNER,
Plaintiff,

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No. CIV S-09-1568 KJM EFB P

vs.
MATTHEW L. CATE, et al.,
Defendants.

ORDER
/

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. He requests that the court appoint counsel. He also requests an extension of

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time to supplement his request for counsel. District courts lack authority to require counsel to

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represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490

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U.S. 296, 298 (1989). In exceptional circumstances, the court may request counsel voluntarily to

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represent such a plaintiff. 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th

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Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining

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whether “exceptional circumstances” exist, the court must consider the likelihood of success on

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the merits as well as the ability of the plaintiff to articulate his claims pro se in light of the

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complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).

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The court finds there are no exceptional circumstances in this case.
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In his request for an extension of time, plaintiff states he has received some, but not all,

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of his medical records and needs time to sort through the “enormous volume of documents.”

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Dckt. No. 52 at 2. He requests additional time to obtain the rest of his medical records, to

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supplement his request for counsel, and to file dispositive motions and “motions for some form

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of discovery.” Id. He also claims to have been prejudiced by the court’s order compelling him

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to cooperate with defendants’ discovery requests. Id. at 2-3.

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The March 22, 2011 discovery and scheduling order stated that the parties could conduct

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discovery until July 15, 2011, and that the deadline for filing dispositive motions was October 7,

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2011. Dckt. No. 34. Thus, plaintiff appears to be requesting modification of the scheduling

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order. Defendants oppose that request and argue they would be prejudiced by modification of

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the scheduling order. Dckt. No. 53.

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A scheduling order may be modified upon a showing of good cause. Fed. R. Civ. P.

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16(b). Good cause exists when the moving party demonstrates he cannot meet the deadline

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despite exercising due diligence. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th

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Cir. 1992). Plaintiff has not demonstrated that despite his diligence, he could not meet the

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deadlines for discovery or for filing dispositive motions. And as the court previously noted,

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plaintiff appeared to have had access to his legal materials, eyeglasses, and library materials, as

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well as the ability to write without restriction, during the time within which he should have been

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serving discovery requests and preparing a dispositive motion. Dckt. No. 45, 48. Moreover, a

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party’s failure to meaningfully participate in discovery and comply with discover rules is

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grounds for sanctions. Fed. R. Civ. P. 37. That plaintiff was required to fulfill his obligation to

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respond to defendants’ discovery requests was not prejudicial. Accordingly, plaintiff’s request

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for an extension of time, or to modify the scheduling order, is denied.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s February 9, 2012, request for

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appointment of counsel and his February 16, 2012 request for an extension of time, are denied.

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DATED: March 5, 2012.

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