James v. Fagan

Filing 41

ORDER signed by Magistrate Judge Edmund F. Brennan on 8/20/13 ORDERING that the deadline for serving interrogatories is extended, nunc pro tunc, to May 16, 2013, and plaintiffs May 16, 2013 interrogatories are deemed timely; Plaintiffs request for assistance in arranging depositions is denied; Plaintiffs request for the appointment of counsel is denied; and the Clerk shall terminate plaintiffs motions (ECF Nos. 36 , 37 , 38 ). (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHARLES C. JAMES,

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No. 2:11-cv-1527-TLN-EFB P

Plaintiff,

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v.

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FAGAN, et al.,

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ORDER

Defendants.

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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. Plaintiff has filed several motions with the court. ECF Nos. 36, 37, 38. While

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not entirely clear, plaintiff appears to request the following: (1) an extension of the May 13, 2013

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deadline for serving discovery requests, along with a determination that his May 16, 2013

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interrogatories were timely served; (2) assistance in arranging depositions of defendant and

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potential witnesses; and (3) appointment of counsel.

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Extension of the Discovery Deadline1

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Under the court’s discovery and scheduling order, all requests for discovery pursuant to

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Rule 33 of the Federal Rules of Civil Procedure were to be served by May 13, 2013. ECF No. 33.

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Defendant opposes this request. ECF No. 39.
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A scheduling order may be modified upon a showing of good cause. Fed. R. Civ. P. 16(b). Good

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cause exists when the moving party demonstrates he cannot meet the deadline despite exercising

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due diligence. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992).

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Plaintiff served defendant with interrogatories on May 16, 2013. ECF No. 36 at 9.

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Plaintiff states that he had the interrogatories ready during the week of May 6, 2013, but that

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service was delayed by at least one week because of shortcomings in the law library’s resources

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and copying services. Id. at 1. Good cause appearing, the court will extend the deadline for

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serving interrogatories, nunc pro tunc, to May 16, 2013, and deem plaintiff’s May 16, 2013

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interrogatories, timely served.2 Defendant shall respond to those interrogatories in accordance

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with Rule 33(b).

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Arranging Depositions

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Plaintiff requests unspecified assistance in arranging the depositions of defendant and

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other potential witnesses. Plaintiff’s request must be denied, as the court cannot even ascertain

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the precise assistance that plaintiff requests. Moreover, the proper procedures for taking

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depositions, both orally and by written question, are set forth in Rules 30 and 31 of the Federal

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Rules of Civil Procedure. Plaintiff has not complied with those procedures.

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Appointment of Counsel

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Plaintiff requests that the court appoint counsel. District courts lack authority to require

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counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist.

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Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney

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to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d

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1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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When determining whether “exceptional circumstances” exist, the court must consider the

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likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro

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se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970

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Defendant notes in his opposition that plaintiff served a second and third set of interrogatories
on June 27 and July 12, respectively. ECF No. 39 at 2. These interrogatories were not timely
served, and there is no good cause to further modify the discovery and scheduling order to deem
them timely.
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(9th Cir. 2009). Having considered those factors, the court finds there are no exceptional

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circumstances in this case.

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Summary of Order

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Accordingly, IT IS HEREBY ORDERED that:

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1. The deadline for serving interrogatories is extended, nunc pro tunc, to May 16, 2013,

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and plaintiff’s May 16, 2013 interrogatories are deemed timely;

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2. Plaintiff’s request for assistance in arranging depositions is denied;

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3. Plaintiff’s request for the appointment of counsel is denied; and

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4. The Clerk shall terminate plaintiff’s motions (ECF Nos. 36, 37, 38).

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Dated: August 20, 2013.

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