Ford v. California Health Care Facility et al.

Filing 54

ORDER signed by Magistrate Judge Deborah Barnes on 6/12/2017 DENYING 51 Motion to Appoint Counsel and DENYING 52 Motion for Extension of the Discovery Cut-off. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DARREN VINCENT FORD,

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Plaintiff,

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No. 2:15-cv-2588 GEB DB P

v.

ORDER

CALIFORNIA HEALTH CARE
FACILITY, et al.,
Defendants.

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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. Plaintiff alleges defendant Jahangiri violated plaintiff’s Eighth

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Amendment rights when Jahangiri failed to take any protective measures after plaintiff threatened

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to commit suicide. Before the court are plaintiff’s requests for the appointment of counsel and for

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an extension of the discovery cut-off. Both motions will be denied.
MOTION FOR APPOINTMENT OF COUNSEL

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Plaintiff seeks the appointment of counsel because he is untrained in the law. (ECF No.

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51.) The United States Supreme Court has ruled that district courts lack authority to require

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counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490

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U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the

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voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d

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1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 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 the present case, the court does not find the required exceptional circumstances.

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Accordingly, the court will deny plaintiff’s motion for the appointment of counsel.

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MOTION FOR EXTENSION OF THE DISCOVERY CUT-OFF

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On November 21, 2016, the court issued a discovery and scheduling order setting a

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deadline of March 10, 2017 for discovery. (ECF No. 27.) On January 20, the court granted

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plaintiff’s request for an extension of time to respond to defendant’s discovery. (ECF No. 38.)

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Plaintiff moved for a second extension of time, which was also granted. (ECF No. 44.)

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Plaintiff’s responses to the discovery were due on February 28. At defendant’s request, the court

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also continued the discovery cut-off to April 14. (Id.)

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On March 3, defendant filed a motion to compel plaintiff to respond to his Request for

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Production of Documents, Set One. In an order filed April 12, the court granted that request and,

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later, granted defendant’s motion to extend the deadline for filing pretrial motions to July 3, 2017.

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(ECF Nos. 48, 50.)

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In a document filed June 6, plaintiff moved for a 45-day extension of the April 14

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discovery cut-off. The only reasons plaintiff provides are his concern that defendant was

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continuing to seek discovery past the April 14 date and that he would like a little more time to

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prepare for trial by propounding interrogatory questions to defendant. (ECF No. 52.)

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Plaintiff provides no basis for an extension of the discovery cut-off. First, in the April 12

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order, the court granted defendant’s motion to compel but also required defendant to re-serve the

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Request for Production of Documents with appropriate instructions to plaintiff on responding.
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(See ECF No. 48 at 5-6.) Defendant was thus permitted by the court to re-serve the Request for

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Production of Documents after the April 14 discovery cut-off. Second, plaintiff fails to explain

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what additional discovery he requires from defendant and why he was unable to seek that

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information during the discovery period. Plaintiff has not shown good cause for an extension of

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time.

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For the reasons set forth above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for the appointment of counsel (ECF No. 51) is denied; and

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2. Plaintiff’s motion for an extension of the discovery cut-off (ECF No. 52) is denied.

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Dated: June 12, 2017

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DLB:9
DLB1/prisoner-civil rights/ford2588.31(3)

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