Thomas v. Antipov et al

Filing 28

ORDER signed by Magistrate Judge Edmund F. Brennan on 2/28/2012 DENYING plaintiff's 27 request for appointment of counsel and plaintiff's 25 motion to compel. (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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JAMAAL THOMAS,
Plaintiff,

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vs.

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No. CIV S-11-1138 MCE EFB P

ANTIPOV, et al.,
Defendants.

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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 moves to compel defendants to cooperate in discovery. He also requests that

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the court appoint counsel and that the court “reschedule”his deposition, set for February 24,

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2012, in light of his request for counsel. For the reasons stated below, plaintiff’s motions are

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denied.

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

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

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exceptional circumstances, the court may request counsel voluntarily to represent such a

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

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

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“exceptional circumstances” exist, the court must consider the likelihood of success on the
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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 has determined there are no exceptional circumstances in this case. Plaintiff’s requests

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for counsel and to reschedule his deposition, are denied.

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Plaintiff also moves to compel defendants’ discovery responses. He claims that

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defendants failed to respond to interrogatories and requests for admissions that he served on

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November 15, 2011. Dckt. No. 25. Pursuant to the amended discovery and scheduling order, all

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written requests for discovery were to be served no later than December 30, 2011, and all

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motions to compel filed by February 28, 2012. Dckt. No. 22. Defendants respond in their

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opposition brief that on December 19 and 22, 2011, they timely served their discovery responses

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on plaintiff, and attach copies of their responses, along with proofs of service. Dckt. No. 26,

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Williams Decl. ¶¶ 4-5, Exs. 1-B. Plaintiff did not file a reply brief. There are no grounds on

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which to grant plaintiff’s motion to compel, given defendants’ evidence showing that they

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provided plaintiff with responses to his discovery requests. Plaintiff’s motion to compel is

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denied.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s February 13, 2012 request for appointment of counsel is denied.

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2. Plaintiff’s February 7, 2012 motion to compel is denied.

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DATED: February 28, 2012.

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