Henderson v. Lankford et al

Filing 39

ORDER signed by Magistrate Judge Kendall J. Newman on 06/26/14 ordering plaintiff's request to forward discovery requests 37 is denied. The discovery and scheduling order is revised as follows: The 06/27/14 discovery deadline is continued to 7/28/14. The 9/19/14 deadline for filing pretrial motions, except motions to compel discovery, is continued to 10/20/14. In all other respects the 3/07/14 scheduling order remains in effect. Plaintiff's motion for appointment of counsel 36 is denied. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JEFFREY HENDERSON,

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No. 2:12-cv-2317 KJN P

Plaintiff,
v.

ORDER AND REVISED SCHEDULING
ORDER

DR. R. LANKFORD,
Defendant.

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Plaintiff is a state prisoner proceeding pro se in an action brought under 42 U.S.C. § 1983.

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On June 11, 2014, plaintiff filed a request for the court to forward discovery to defendant.

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(ECF No. 37.) Plaintiff states that he was attacked on the yard on May 26, 2014, and placed in

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administrative segregation until transfer or his parole date of October 3, 2014. Plaintiff claims

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that he mailed the discovery requests to counsel for defendant at the Office of the Attorney

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General, but it was returned by the post office. It appears that plaintiff used the proper address

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for defendant’s counsel. (ECF No. 37 at 1.) Because plaintiff’s property was placed in storage

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for ten days, plaintiff claims he mailed the discovery requests to the court for service by the court

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on defendant Lankford’s counsel at plaintiff’s expense.

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However, there were no discovery requests appended to plaintiff’s request. (ECF No. 37.)

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Because the court did not receive plaintiff’s discovery requests, plaintiff’s request is denied.

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Given the impending discovery deadline of June 27, 2014, the court sua sponte extends the
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discovery deadline to provide plaintiff an opportunity to serve his discovery requests on

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defendant.

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On June 20, 2014, defendant filed a motion to compel further responses to interrogatories.

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Plaintiff is advised that the instant order does not alter his obligation to respond to defendant’s

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motion within twenty-one days, pursuant to Local Rule 230(l).

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Plaintiff also seeks the appointment of 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 to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935

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F.2d 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 plaintiff’s

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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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(9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The

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burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances

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common to most prisoners, such as lack of legal education and limited law library access, do not

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establish exceptional circumstances that 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

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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 request for the court to forward discovery requests (ECF No. 37) is denied;

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2. The discovery and scheduling order is revised as follows:

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a. The June 27, 2014 discovery deadline is continued to July 28, 2014;

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b. The September 19, 2014 deadline for filing pretrial motions, except motions to

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compel discovery, is continued to October 20, 2014; and
c. In all other respects, the Scheduling Order, dated March 7, 2014, shall remain
in full force and effect.
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3. Plaintiff’s motion for the appointment of counsel (ECF No. 36) is denied without

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prejudice.

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Dated: June 26, 2014

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/hend2317.31(2)

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