Foss v. Rowen

Filing 29

ORDER signed by Magistrate Judge Deborah Barnes on 12/13/16 ORDERING that plaintiff's Motion for Leave of Court to File Sur-reply (ECF No. 28 ) is GRANTED. Within 20 days of the date of this order, plaintiff shall file any sur-reply. Plaintiff's Motion for Appointment of Counsel (ECF No. 26 ) is DENIED. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RAYMOND C. FOSS,

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No. 2:15-cv-0686 TLN DB P

Plaintiff,

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v.

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TODD ROWEN,

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ORDER

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. On January 22, 2016, defendant moved to dismiss the complaint

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on the grounds that it is untimely. Plaintiff opposes the motion. In his reply, defendant raises

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arguments not raised in his opening brief on the motion. Plaintiff now seeks an opportunity to

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file a sur-reply. In addition, plaintiff renews the request for appointment of counsel made along

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with his opposition to the motion to dismiss.

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Motion to File Sur-reply
The filing of a sur-reply is not authorized by the Local Rules or by the Federal Rules of

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Civil Procedure. However, a sur-reply may be appropriate where the moving party has raised

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new arguments in its reply brief. See Hartline v. National Univ., No. 2:14-cv-0635 KJM AC PS,

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2015 WL 351813, *7 (E.D. Cal. Jan. 23, 2015) (citing Hill v. England, 2005 WL 3031136, *11

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(E.D. Cal. Nov. 8, 2005)). In the present case, defendant states in his reply brief that he did not
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construe the claim in plaintiff’s petition as one based on a warrantless arrest. (Def.’s Reply (ECF

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No. 27) at 2.) By defendant’s own admission, defendant raises new legal arguments in the reply

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brief. Accordingly, the court finds it appropriate to permit plaintiff to file a sur-reply.

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Motion for Appointment of Counsel

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Plaintiff provides no basis for his request for an attorney besides the fact that he also seeks

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a hearing on defendant’s motion. (See Pl.’s Oppo. (ECF No. 26) at 5; Pl.’s Mot. for Leave to File

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Sur-reply (ECF No. 28) at 3.) The United States Supreme Court has ruled that district courts

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

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

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district court may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1).

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Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332,

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1335-36 (9th Cir. 1990).

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The test for exceptional circumstances requires the court to evaluate the plaintiff’s

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likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in

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light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328,

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1331 (9th Cir. 1986); 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. In addition, the court does not typically hold hearings on motions filed in actions in

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which one party is incarcerated. E.D. Cal. R. 230(l). The court does not find a hearing warranted

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on defendant’s motion to dismiss. Further, the court does not find the required exceptional

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circumstances justify the court seeking the assistance of counsel for plaintiff in this case.

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Accordingly, IT IS HEREBY ORDERED as follows:

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1. Plaintiff’s Motion for Leave of Court to File Sur-reply (ECF No. 28) is granted.

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Within twenty days of the date of this order, plaintiff shall file any sur-reply.

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2. Plaintiff’s Motion for Appointment of Counsel (ECF No. 26) is denied.
Dated: December 13, 2016

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DLB:9
DLB1/prisoner-civil rights/foss0686.31

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