Farley v. Virga et al

Filing 59

ORDER signed by Magistrate Judge Kendall J. Newman on 7/10/2014 DENYING plaintiff's 57 motion for an extension of time; DENYING plaintiff's 58 motion to appoint counsel; DENYING plaintiff's 54 motion for oral depositions; and DENYING plaintiff's 55 motion to be examined by an outside doctor. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIAM D. FARLEY,

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No. 2:13-cv-1751 KJN P

Plaintiff,

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v.

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T. VIRGA, et al.,

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ORDER

Defendants.

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Pending before the court is plaintiff’s June 10, 2014 third motion for an extension of time

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to file his opposition to defendants’ motion to dismiss. (ECF No. 57.) Plaintiff requests sixty

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days to file his opposition. On May 29, 2014, the court granted plaintiff sixty days to file his

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opposition. (ECF No. 53.) It seems likely that plaintiff had not received the May 29, 2014 order

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when he prepared the pending motion for extension of time. Accordingly, plaintiff’s June 10,

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2014 motion for an extension of time is denied as unnecessary based on the May 29, 2014 order

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granting him sixty days to file his opposition.

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On June 10, 2014, plaintiff filed a motion for the appointment of counsel. (ECF No. 58.)

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District courts lack authority to require counsel to represent indigent prisoners in section 1983

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

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circumstances, the court may request an attorney to voluntarily to represent such a plaintiff. See

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

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

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circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as

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well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the

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legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not

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abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional

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circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of

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legal education and limited law library access, do not establish exceptional circumstances that

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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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On June 10, 2014, plaintiff filed a motion requesting that he be permitted to take

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defendants’ depositions. (ECF No. 54.) In this motion, plaintiff does not indicate how he will

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pay for the depositions. In this action, plaintiff is proceeding in forma pauperis. The expenditure

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of public funds on behalf of an indigent litigant is proper only when authorized by Congress. See

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Tedder v. Odel, 890 F.2d 210 (9th Cir. 1989). The in forma pauperis statute does not authorize

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the expenditure of public funds to pay for the costs of defendants’ depositions. See 28 U.S.C. §

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1915. Accordingly, plaintiff’s motion to take defendants’ depositions is denied because plaintiff

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does not demonstrate an ability to pay for the depositions.

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On June 10, 2014, plaintiff filed a motion requesting that he be examined by an outside

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doctor pursuant to Federal Rule of Civil Procedure 35. (ECF No. 55.) Plaintiff requests that he

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be examined by an outside doctor in order to bring facts to the court’s attention that defendants

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are covering up.

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Federal Rule of Civil Procedure 35 authorizes the court to order a party to submit to a

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physical examination at the request of an opposing party. This rule does not authorize the court

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“to appoint an expert to examine a party wishing an examination of himself.” Smith v. Carroll,

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602 F.Supp.2d 521, 526 (D.Del. 2009). Accordingly, plaintiff’s motion for a physical

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examination pursuant to Federal Rule of Civil Procedure 35 is denied.
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Accordingly, IT IS HEREBY ORDERED that:
Plaintiff’s motion for an extension of time (ECF No. 57) is denied;

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2. Plaintiff’s motion for the appointment of counsel (ECF No. 58) is denied;

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3. Plaintiff’s motion for oral depositions (ECF No. 54) is denied; and

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4. Plaintiff’s motion to be examined by an outside doctor (ECF No. 55) is denied.

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Dated: July 10, 2014

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