Navarro v. Herdon et al

Filing 200

ORDER signed by Magistrate Judge Kendall J. Newman on 7/22/16 ORDERING that plaintiff's motion to strike (ECF No. 182 ) is DENIED; Plaintiff's motion for an extension of time to file objections (ECF No. 198 ) is GRANTED; plaintiff' s objections o to the March 25, 2016 findings and recommendations are due on or before August 22, 2016; Plaintiff's motion for appointment of counsel (ECF No. 189 ) is DENIED without prejudice.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARIO NAVARRO,

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Plaintiff,

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No. 2: 09-cv-1878 KJM KJN P

v.

ORDER

DEBRA HERNDON, et al.,

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Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. Several matters are pending before the court.

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Plaintiff’s Motion for Extension of Time to File Objections
On March 25, 2016, the undersigned recommended that defendants’ summary judgment

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motion be granted in part and denied in part. (ECF No. 183.) On April 6, 2016, the undersigned

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issued an order setting a settlement conference. (ECF No. 184.) The April 6, 2016 order also

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stated that if the case did not settle, the parties had 14 days following the settlement conference to

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file objections. (Id.)
On July 8, 2016, the settlement conference was held. The case did not settle. Pending

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before the court is plaintiff’s July 19, 2016 motion for an extension of time to August 22, 2016, to

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file objections. Good cause appearing, this motion is granted

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Plaintiff’s Motion to Strike
On March 2, 2016, defendants filed a notice of errata. (ECF No. 181.) In this notice,

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defendants stated that the request for judicial notice filed in support of their summary judgment

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motion erroneously included a second copy of Exhibit L in place of the intended Exhibit K. In

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the notice of errata, defendants request that the corrected Exhibit K, attached to the notice of

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errata, be substituted for the erroneously included exhibit to their previously filed request for

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judicial notice. In considering defendants’ summary judgment motion, the undersigned

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substituted the corrected Exhibit K attached to the notice of errata.

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On March 23, 2016, plaintiff filed a motion to strike the notice of errata. (ECF No. 182.)
Plaintiff argues that the corrected Exhibit K is untimely.
Defendants’ request to correct an error in their exhibits is properly made in the notice of

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errata. Accordingly, plaintiff’s motion to strike the notice of errata is denied.

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Plaintiff’s Motion for Appointment of Counsel

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On June 3, 2016, plaintiff filed a motion for appointment of counsel. (ECF No. 189.)

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District courts lack authority to require counsel to represent indigent prisoners in section

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1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional

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circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28

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U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v.

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Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional

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circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as

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

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legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not

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abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional

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circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of

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legal education and limited law library access, do not establish exceptional circumstances that

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warrant a request for voluntary assistance of counsel.

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Having considered the factors under Palmer, the court finds that plaintiff has failed to
meet his burden of demonstrating exceptional circumstances warranting the appointment of
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counsel at this time.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to strike (ECF No. 182) is denied;

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2. Plaintiff’s motion for an extension of time to file objections (ECF No. 198) is granted;

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plaintiff’s objections o to the March 25, 2016 findings and recommendations are due on or before

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August 22, 2016;

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3. Plaintiff’s motion for appointment of counsel (ECF No. 189) is denied without

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prejudice.

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Dated: July 22, 2016

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Nav1878.obj
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