Mendoza v. C.D.C.R., et al.

Filing 39

ORDER signed by Magistrate Judge Allison Claire on 01/11/15 ordering plaintiff's motion for an extension of the discovery deadline 31 is granted. Paragraphs 6 and 7 of the court's Discovery and Scheduling Order 20 at 5 are amended to r ead: The parties may conduct discovery until 4/20/15. Any motions necessary to compel discovery shall be filed by that date. All requests for discovery pursuant to Fed. R. Civ. P. 31, 33, 34 or 36 shall be served not later than 60 days prior to tha t date (02/19/15). All pretrial motions, except motions to compel discovery, shall be filed on or before 7/20/15. Motions shall be briefed in accordance with paragraph 8 of this court's order filed 05/28/14 17 . Defendant's timely motion for an extension of time to answer 32 is granted nunc pro tunc, and his answer filed 12/22/14 34 is deemed timely filed. Plaintiff's motion for appointment of counsel 35 is denied without prejudice. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANIEL MENDOZA,

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No. 2:13-cv-2366 AC P

Plaintiff,
v.

ORDER

NEAL P. SWANN, D.D.S.,

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Defendant.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights

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action under 42 U.S.C. § 1983. Defendant has not consented to the jurisdiction of the magistrate

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judge. Pending before the court are (1) plaintiff’s motion for an extension of the discovery

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deadline, (2) defendant’s motion for an extension of time to file an answer, and (3) plaintiff’s

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motion for appointment of counsel.

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1.

Extension of Discovery Deadline

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The court’s Discovery and Scheduling Order set January 20, 2015 as the deadline for

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conducting discovery and the filing of discovery motions. ECF No. 20. Plaintiff asks for an

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additional 60 or 90 days to conduct discovery. ECF No. 31. Defendant has filed a Statement of

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Non-Opposition. ECF No. 33. The discovery deadline will be extended by 90 days.

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2.

Extension of Time To Answer

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Plaintiff’s Second Amended Complaint was served on defendant Swann on December 4,
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2014. See ECF No. 32 ¶ 6. On December 17, 2014, defendant timely requested a 30-day

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extension of time to file an answer. ECF No. 32. On December 22, 2015, defendant filed his

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answer, having missed the 14-day period allotted for responding to an amended pleading. See

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ECF No. 34; Fed. R. Civ. P. 15(a)(3). Plaintiff has not filed an opposition to this motion. The

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motion for an extension of time will therefore be granted, and the answer will be deemed to be

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timely filed.

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3.

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District courts may not require counsel to represent indigent prisoners in § 1983 cases.

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Appointment of Counsel

Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). However, where willing counsel

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is available, the district court “may request an attorney to represent any person unable to afford

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counsel.” 28 U.S.C. § 1915(e)(1); Agyeman v. Corrections Corp. of America, 390 F.3d 1101,

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1103 (9th Cir. 2004), cert. denied, 545 U.S. 1128 (2005).

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The district court may appoint such counsel where “exceptional circumstances” exist.

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Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009), cert. denied, 559 U.S. 906 (2010) (citing

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Agyeman, 390 F.3d at 1103). In determining whether or not exceptional circumstances exist, “a

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court must consider ‘the likelihood of success on the merits as well as the ability of the petitioner

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to articulate his claims pro se in light of the complexity of the legal issues involved.’” Palmer,

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560 F.3d at 970 (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). 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 would warrant a request for voluntary assistance of

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counsel. See, e.g., Guess v. Lopez, 2014 WL 1883875 at *5 (E.D. Cal. 2014) (Claire, M.J.). The

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court does not find exceptional circumstances in this case, at this time.

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Accordingly, IT IS HEREBY ORDERED that

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1.

Plaintiff’s motion for an extension of the discovery deadline (ECF No. 31), is

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GRANTED. Paragraphs 6 and 7 of the court’s Discovery and Scheduling Order (ECF No. 20 at

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5) are AMENDED to read:

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6. The parties may conduct discovery until April 20, 2015. Any motions

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necessary to compel discovery shall be filed by that date. All requests for
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discovery pursuant to Fed. R. Civ. P. 31, 33, 34 or 36 shall be served not later than

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sixty days prior to that date (February 19, 2015).

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7. All pretrial motions, except motions to compel discovery, shall be filed on or

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before July 20, 2015. Motions shall be briefed in accordance with paragraph 8 of

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this court’s order filed May 28, 2014 (ECF No. 17).

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2.

Defendant's timely motion for an extension of time to answer (ECF No. 32), is

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GRANTED nunc pro tunc, and his Answer, filed December 22, 2014 (ECF No. 34), is deemed to

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be timely filed.

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3.

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prejudice.

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DATED: January 11, 2015

Plaintiff’s motion for appointment of counsel (ECF No. 35), is DENIED without

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