Matthew v. Lahey et al

Filing 89

ORDER signed by Magistrate Judge Kendall J. Newman on 01/25/12 granting 85 Motion to modify scheduling order. The 09/14/11 scheduling order 75 is modified as follows: The discovery deadline is extended to 04/09/12. The pretrial motion deadline is extended to 06/11/12. Plaintiff's 12/19/11 request for appointment of counsel 86 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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JOSEPH B. MATTHEWS,

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Plaintiff,

No. 2:09-cv-2415 GEB KJN P

vs.
LAHEY, et al.,

ORDER AND REVISED

Defendants.

SCHEDULING ORDER
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On December 20, 2011, defendant Basi filed a motion to modify the court’s

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scheduling order. Because defendant Basi filed an answer on September 9, 2011, defendant Basi

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states he was unable to comply with the revised scheduling order requiring discovery requests to

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be propounded by October 31, 2011. Plaintiff objects to the modification of the scheduling

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order, claiming he had to wait a year and a half for defendant Basi to be served with process, and

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alleging defendant Basi failed to respond to plaintiff’s interrogatories. Plaintiff states that he will

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need an extension of the pretrial motions deadline if the discovery deadline is extended. In reply,

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defendant Basi points out that plaintiff propounded discovery requests in violation of the October

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31, 2011 deadline, serving them on November 1, 2011, December 14, 2011, and December 28,

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2011. Thus, defendant argues, extension of the discovery deadline will also benefit plaintiff.

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“The district court is given broad discretion in supervising the pretrial phase of
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litigation.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992) (citation

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and internal quotation marks omitted). Rule 16(b) provides that “[a] schedule may be modified

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only for good cause and with the judge's consent.” Fed. R. Civ. P. 16(b)(4). “The schedule may

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be modified ‘if it cannot reasonably be met despite the diligence of the party seeking the

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extension.’” Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002)

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(quoting Johnson., 975 F.2d at 607).

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On September 14, 2011, the court set a discovery deadline for December 30,

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2011, and a pretrial motions deadline for February 23, 2012. Because it appears both defendant

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Basi and plaintiff require additional time to propound discovery, the discovery deadline will be

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extended, which also requires the extension of the dispositive motion deadline. However, both

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parties are advised that this court is not inclined to entertain further requests to extend these

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deadlines. Good cause appearing, defendant’s motion is granted.

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Plaintiff has renewed his request for the appointment of counsel. The United

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

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indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298

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(1989). In certain exceptional circumstances, the court may request the voluntary assistance of

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counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.

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1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). “A finding of

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exceptional circumstances requires an evaluation of both the likelihood of success on the merits

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and the ability of the petitioner to articulate his claims pro se in light of the complexity of the

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legal issues involved.” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). In the

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present case, the court does not find the required exceptional circumstances. To date, plaintiff

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has competently and diligently represented himself in this action, and the court is unable to

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determine the likelihood of success on the merits at this time. Plaintiff’s request for the

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appointment of counsel will therefore be denied.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Defendant Basi’s December 20, 2011 motion to modify the scheduling order

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(dkt. no. 85) is granted; and

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2. The September 14, 2011 scheduling order (dkt. no. 75) is modified as follows:

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A. The discovery deadline is extended to April 9, 2012; and

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B. The pretrial motions deadline is extended to June 11, 2012.

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3. Plaintiff’s December 19, 2011 request for appointment of counsel (dkt. no. 86)

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is denied.

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DATED: January 25, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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