Logan v. Horwitz, et al.

Filing 140

ORDER signed by Magistrate Judge Allison Claire on 01/03/18 DENYING 121 , 122 , 127 , 131 motions for the appointment of counsel and DENYING 124 motion for discovery. Within twenty-one days after the filing date of this order, plaintiff shall file and servean opposition to the motion for summary judgment or a statement of non-opposition.(Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES DAVID LOGAN, II,

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No. 2:15-cv-0121 MCE AC P

Plaintiff,
v.

ORDER

EVALYN HORWITZ, et al.,
Defendants.

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On October 16, 2017, defendants filed a motion for summary judgment. ECF No. 135.

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After plaintiff filed a notice of change of address in which he stated that he was unable to access

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the law library at his previous institution, he was granted a thirty-day extension of time to file a

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response to the motion. ECF No. 139. Thirty days have now passed and plaintiff has not

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opposed the motion. Plaintiff will be given an additional twenty-one days to respond to the

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motion for summary judgment. Failure to file a response will result in a recommendation that this

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action be dismissed.

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Plaintiff has also filed a number of motions for counsel and a motion for discovery. ECF

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Nos. 121, 122, 124, 127, 131. The United States Supreme Court has ruled that district courts lack

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authority to require counsel to represent indigent prisoners in § 1983 cases. Mallard v. United

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States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the district

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court may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell
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v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36

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(9th Cir. 1990).

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“When determining whether ‘exceptional circumstances’ exist, a 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

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

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970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden

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of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to

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

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exceptional circumstances that would warrant a request for voluntary assistance of counsel.

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Plaintiff has not shown that he has a likelihood of success on the merits and has thus far been

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capable of articulating his claims. The court therefore does not find the required exceptional

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circumstances and plaintiff’s requests for counsel will be denied without prejudice.

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In his motion for discovery, plaintiff requests that the court provide his medical file and

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subpoena doctors for trial. ECF No. 124. If plaintiff wants his medical file, he must follow the

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procedures for obtaining a copy from the California Department of Corrections and

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Rehabilitation. With respect to his request to subpoena doctors for trial, it has yet to be

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determined whether this case will proceed to trial and the request is denied. To the extent

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plaintiff is requesting the court appoint an expert witness to testify on his behalf, the court has

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already addressed this issue and denied the request. ECF No. 111 at 2-3. Plaintiff has not

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identified any change in circumstances that would warrant a different outcome and the request

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will be denied.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Within twenty-one days after the filing date of this order, plaintiff shall file and serve

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an opposition to the motion for summary judgment or a statement of non-opposition. Failure to

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comply with this order will result in a recommendation that this action be dismissed without

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prejudice for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).

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2. Plaintiff’s motions for appointment of counsel (ECF Nos. 121, 122, 127, 131) are
denied.
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3. Plaintiff’s motion for discovery (ECF No. 124) is denied.

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SO ORDERED.

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DATED: January 3, 2018

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