Edward v McDonald et al

Filing 59

ORDER signed by Magistrate Judge Craig M. Kellison on 10/31/12 ordering plaintiff's motion for appointment of counsel 50 is denied. Defendants' motion to modify the schedule to permit plaintiff's deposition to be taken should this ma tter not be resolved on summary judgment 52 is granted. Defendants' motion to modify the schedule 56 to extend the time for filing dispositive motions is granted. Dispositive motions are due by 11/06/12. Plaintiff's motion for an order setting a case management conference 54 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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MEL TYRONE EDWARD,

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No. 2:10-CV-0979-JAM-CMK-P

Plaintiff,

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vs.

ORDER

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M.D. McDONALD, et al.,

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Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Pending before the court are: (1) plaintiff’s motion for appointment of

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counsel (Doc. 50) and defendants’ opposition thereto (Doc. 51); (2) defendants’ motion for

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modifications of the scheduling order (Docs. 52 and 56); and (3) plaintiff’s motion for an order

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setting a case management conference (Doc. 54).

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In their motions to modify the case schedule (Docs. 52 and 56), defendants first

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ask that discovery be left open for the limited purpose of deposing plaintiff should this case not

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be resolved on summary judgment. Defendants also seek an extension of time to file dispositive

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motions. Good cause appearing therefor, the requests will be granted.

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Plaintiff seeks the appointment of counsel (Doc. 50). The United States Supreme

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

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prisoners in § 1983 cases. See Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989).

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In certain exceptional circumstances, the court may request the voluntary assistance of counsel

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pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991);

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

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circumstances” requires an evaluation of both the likelihood of success on the merits and the

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ability of the plaintiff to articulate his claims on his own in light of the complexity of the legal

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issues involved. See Terrell, 935 F.2d at 1017. Neither factor is dispositive and both must be

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viewed together before reaching a decision. See id.

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In the present case, the court does not at this time find the required exceptional

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circumstances. Plaintiff has not demonstrated any particular likelihood of success on the merits

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stemming solely from the court’s earlier conclusion that the complaint appears to state claims

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upon which relief can be granted. Whether a party states a claim and whether a party has a

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likelihood of success on that claim are two very different questions. Additionally, the court finds

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that plaintiff has a sufficient ability to articulate his claims on his own. While plaintiff states that

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he suffers from severe depression and bipolar disorder, these conditions are not in and of

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themselves such that they would prevent plaintiff representing himself. In fact, plaintiff’s

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declaration is well-written and organized and demonstrates his ability, despite his mental

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impairments, to articulate his position on his own.

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Next, plaintiff seeks an order setting a case management conference. At this time,

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the court does not find that such a conference is necessary. By this order, the court has resolved

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all outstanding motions and revised the final schedule for this case through the filing of

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dispositive motions.

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Finally, the court notes that defendant Medina’s motion for summary judgment,

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filed on October 22, 2012, does not contain the required notice to plaintiff. See Woods v. Carey,

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684 F.3d 934, 935 (9th Cir. 2012). The court now provides that notice as follows:

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Pursuant to Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998)
(en banc), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988),
plaintiff is advised of the following requirements for opposing a motion
for summary judgment made by defendants pursuant to Rule 56 of the
Federal Rules of Civil Procedure: Such a motion is a request for an order
for judgment in favor of defendants without trial. A defendant’s motion
for summary judgment will set forth the facts that the defendants contend
are not reasonably subject to dispute and that entitle the defendants to
judgment. To oppose a motion for summary judgment, plaintiff must
show proof of his or her claims. Plaintiff may do this in one or more of
the following ways. Plaintiff may rely upon statements made under the
penalty of perjury in the complaint if the complaint shows that plaintiff has
personal knowledge of the matters stated and plaintiff calls to the court’s
attention those parts of the complaint upon which plaintiff relies. Plaintiff
may serve and file one or more affidavits or declarations setting forth the
facts that plaintiff believes prove plaintiff’s claims; the person who signs
an affidavit or declaration must have personal knowledge of the facts
stated. Plaintiff may rely upon written records, but plaintiff must prove
that the records are what plaintiff claims they are. Plaintiff may rely upon
all or any part of the transcript of one or more depositions, answers to
interrogatories, or admissions obtained in this proceeding. If plaintiff fails
to contradict the defendants’ evidence with counteraffidavits or other
admissible evidence, the defendants’ evidence may be taken as the truth
and the defendants’ motion for summary judgment granted. If there is
some good reason why such facts are not available to plaintiff when
required to oppose a motion for summary judgment, the court will
consider a request to postpone considering the defendants’ motion. If
plaintiff does not serve and file a written opposition to the motion or a
request to postpone consideration of the motion, the court may consider
the failure to act as a waiver of opposition to the defendants’ motion. If
the defendants’ motion for summary judgment, whether opposed or
unopposed, is granted, judgment will be entered for the defendants without
a trial and the case will be closed.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s motion for appointment of counsel (Doc. 50) is denied;

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2.

Defendants’ motion to modify the schedule (Doc. 52) to permit plaintiff’s

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deposition to be taken should this matter not be resolved on summary judgment is granted;
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Defendants’ motion to modify the schedule (Doc. 56) to extend the time

for filing dispositive motions is granted;

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4.

Dispositive motions are due by November 6, 2012; and

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5.

Plaintiff’s motion for an order setting a case management conference

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(Doc. 54) is denied.

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DATED: October 31, 2012
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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