Zaiza v. Tamplen et al

Filing 45

ORDER signed by Magistrate Judge Edmund F. Brennan on 12/17/18 DENYING 37 Motion for Discovery and GRANTING 39 Motion to Modify the Schedule. The parties shall have 30 days from any ruling denying the pending 36 Motion for Summary Judgment to serve and file dispositive motions. 43 Motion for Extension of Time is GRANTED, and 44 Reply Brief is deemed timely filed. 42 Motion to Appoint Counsel is DENIED. (Huang, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSE R. ZAIZA,

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No. 2:15-cv-0447-KJM-EFB P
Plaintiff,

v.

ORDER

D. TAMPLEN, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. Currently before the court are plaintiff’s “motion for discovery” (ECF No. 37),

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defendants’ motion to modify the scheduling order (ECF No. 39), defendants’ motion for

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extension of time (ECF No. 43), and plaintiff’s motion to appoint counsel (ECF No. 42).

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The Federal Rules of Civil Procedure do not contemplate a generalized “motion for

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discovery” filed with the court. Instead, the Rules provide a process by which parties to a lawsuit

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may seek information from each other or from third parties. Fed. R. Civ. P. 26-37, 45. If one

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party fails to engage in that process, her opponent may file a motion with the court to compel

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such participation. Fed. R. Civ. P. 37. Plaintiff’s motion requests photographic and video

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evidence, but does not indicate that he has submitted these discovery requests to defendants or

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another party having custody of such evidence. In addition, the deadline for serving such requests

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expired on September 14, 2018, and plaintiff has neither requested an extension of that deadline
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nor shown good cause for modification of the scheduling order to do so. ECF Nos. 25, 35.

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Accordingly, the “motion for discovery” is denied without prejudice. Any request by plaintiff to

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extend the discovery deadline shall address the good cause standard for such a modification.

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Additionally, plaintiff’s instant request suggests that the discovery he seeks would somehow have

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relevance to the exhaustion question raised by the defendants but plaintiff does not explain that

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relevance. Any request by plaintiff to extend the discovery deadline shall explain how the

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discovery he seeks has relevance to the exhaustion question.

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Defendants have filed a motion for summary judgment on the basis of non-exhaustion of
administrative remedies. ECF No. 36. They ask that the court modify the scheduling order so

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that, if the court denies the pending summary judgment motion, they may file a dispositive

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motion on the merits. A scheduling order may be modified for good cause. Fed. R. Civ. P.

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16(b)(4). The court finds that good cause for modifying the schedule is present, because such

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modification will prevent the waste of time and resources on merits briefing that may (if the

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exhaustion motion is granted) be unnecessary. Accordingly, the motion to modify the schedule is

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granted.

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Defendants seek an extension of time of 10 days to file a reply brief to plaintiff’s

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opposition to the motion for summary judgment. ECF No. 43. In consideration of the length of

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plaintiff’s opposition, the short extension requested, and the Thanksgiving holiday, the court will

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grant the extra time.

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Plaintiff seeks an order appointing 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 the

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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). Having considered those factors, the court finds there are no exceptional
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circumstances in this case. If plaintiff is being denied access to the law library or legal materials,

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he may file a motion for a court order compelling his custodian to allow such access.

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Accordingly, it is hereby ORDERED that:

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1. Plaintiff’s October 25, 2018 “motion for discovery” (ECF No. 37) is DENIED;

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2. Defendants’ November 7, 2018 motion to modify the schedule (ECF No. 39) is

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GRANTED and the parties shall have 30 days from any ruling denying the pending

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motion for summary judgment (ECF No. 36) to serve and file dispositive motions;

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3. Defendants’ November 21, 2018 motion for extension of time (ECF No. 43) is
GRANTED, and defendants’ December 4, 2018 reply brief (ECF No. 44) is deemed
timely filed; and
4. Plaintiff’s November 19, 2018 motion for appointment of counsel (ECF No. 42) is
DENIED.
Dated: December 17, 2018.

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