Clemente v. Parciasepe et al

Filing 28

ORDER and REVISED SCHEDULING ORDER signed by Magistrate Judge Kendall J. Newman on 11/12/2014 DENYING plaintiff's 26 motion for appointment of counsel, without prejudice; discovery is continued to 12/31/2014; and all pretrial motions, except motions to compel discovery, shall be filed on or before 3/31/2015.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARCELINO CLEMENTE,

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No. 2:14-cv-0611 MCE KJN P

Plaintiff,
v.

ORDER AND REVISED SCHEDULING
ORDER

T. PARCIASEPE, et al.,
Defendants.

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

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1983. Plaintiff requests that the court appoint counsel for discovery purposes only. Plaintiff

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argues that because the defendant “is gonna declare ‘confidential,’ to some of, or more, requests

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plaintiff make [sic] during the discovery process,” the court should appoint counsel to level the

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playing field between plaintiff and counsel for defendants.

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

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1983 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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At the time plaintiff filed his motion, it does not appear that defendants had responded to

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any discovery requests by plaintiff. Thus, plaintiff’s request for appointment of counsel was

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based on his speculation as to how the defendants might respond to discovery requests.

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Moreover, plaintiff failed to acknowledge that should discovery disputes arise, plaintiff may file a

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motion to compel further discovery responses.

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The instant action is proceeding on plaintiff’s straightforward Eighth Amendment claim

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alleging that defendant Parciasepe was deliberately indifferent to plaintiff’s safety and failed to

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protect plaintiff by housing him with a known enemy, and retaliated against plaintiff in

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connection with plaintiff’s subsequent inmate appeal concerning the housing incident. To date,

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plaintiff has filed articulate and appropriate pleadings and other documents.

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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. In light of this ruling, the discovery deadline is continued to December 31,

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2014, and the pretrial motions deadline is continued to March 31, 2015. Fed. R. Civ. P. 16(b)(4).

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In all other respects, the August 11, 2014 scheduling order remains in effect.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for the appointment of counsel (ECF No. 26) is denied without

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prejudice;

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2. The discovery deadline is continued to December 31, 2014; and

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

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March 31, 2015.

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Dated: November 12, 2014

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/clem0611.31(2)

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