Terhune v. Lizarraga et al

Filing 20

ORDER signed by Magistrate Judge Kendall J. Newman on 3/8/2016 DENYING plaintiff's 19 motion for appointment of counsel; and GRANTING plaintiff's 19 request for clarification. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CAMERON R. TERHUNE,

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No. 2:15-cv-1738 TLN KJN P (TEMP)

Plaintiff,
v.

ORDER

JOE LIZARRAGA, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se with a civil rights action, has requested
appointment of counsel.
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 represent such a plaintiff. See 28

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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.
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In this case, plaintiff contends that he is not a lawyer and does not want to make any

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mistakes due to his inexperience or ignorance of the law. The court sympathizes with plaintiff’s

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challenges. However, circumstances common to most prisoners, such as lack of legal education

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and limited law library access, do not establish exceptional circumstances that would warrant a

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request for voluntary assistance of counsel. Having considered the factors under Palmer, the

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court finds that plaintiff has failed to meet his burden of demonstrating exceptional circumstances

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warranting the appointment of counsel at this time. Accordingly, the court denies plaintiff’s

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request for appointment of counsel.

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Plaintiff has also requested clarification from the court on whether he is required to

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respond to the discovery requests he recently received from defense counsel. Plaintiff is advised

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that a party may propound requests for production of documents that are within the scope of

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Federal Rule of Civil Procedure 26(b). Fed. R. Civ. P. 34(a). If plaintiff has any relevant

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documents or materials in his possession or control, he must produce them in response to

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defendants’ discovery requests. Fed. R. Civ. P. 34(b)(2)(B). On the other hand, if plaintiff

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objects to defendants’ request(s), he must state “with specificity” why he is objecting to the

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request(s). Id. If plaintiff is not in possession or control of relevant materials, he must state under

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oath that the requested documents do not exist or are not in his possession or control.

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In addition, a party may propound interrogatories related to any matter that may be

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inquired into under Federal Rule of Civil Procedure 26(b). Fed. R. Civ. P. 33(a)(2). With respect

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to the interrogatories posed by defendants, plaintiff must answer each interrogatory “separately

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and fully in writing under oath.” Fed. R. Civ. P. 33(b)(3). On the other hand, if plaintiff objects

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to defendants’ interrogatory(ies), he must state his objection(s) with specificity. Fed. R. Civ. P.

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33(b)(4). Plaintiff is cautioned that “[t]he discovery process is subject to the overriding limitation

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of good faith obligation.” Asea v. Southern Pacific Transportation Co., 669 F.2d 1242, 1247 (9th

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Cir. 1981).

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Finally, as this court explained in its discovery and scheduling order, issued on February

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5, 2016, plaintiff is required to respond to written discovery requests within forty-five days after

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being served with the requests. The parties seeking discovery are required to serve their
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discovery requests on all parties. Discovery requests and responses shall not be filed with the

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court except when required by the Local Rules of Court.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s February 26, 2016 motion for the appointment of counsel (Doc. No. 19) is

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denied; and
2. Plaintiff’s February 26, 2016 request for clarification (Doc. No. 19) is granted.
Dated: March 8, 2016

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terh1738.31

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