Ford v. California Health Care Facility et al.

Filing 67

ORDER signed by Magistrate Judge Deborah Barnes on 7/11/2017 DENYING 60 Motion for Extension of Discovery Cut-Off; DENYING 64 Motion to Appoint Counsel; and GRANTING 63 Motion for Extension of Time. Plaintiff to file response to 61 Motion for Summary Judgment by 8/18/2017. (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. Plaintiff alleges defendant Jahangiri violated plaintiff’s Eighth Amendment rights when

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Jahangiri failed to take any protective measures after plaintiff threatened to commit suicide.

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Before the court are plaintiff’s requests for discovery, for the appointment of counsel, and for an

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extension of time to file a response to defendant’s summary judgment motion. For the reasons set

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forth below, plaintiff’s requests for discovery and counsel will be denied and his request for an

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extension of time will be granted.

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I.

Request for Discovery
Here, plaintiff asks that he be permitted to serve one more set of interrogatories on

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defendant. (ECF No. 60.) Essentially, plaintiff asks again for an extension of the deadline for

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conducting discovery. The court’s Discovery and Scheduling Order was issued in November

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2016 and set a deadline of March 10, 2017 for conducting discovery. (ECF No. 27.) In an order
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dated February 9, 2017, the court granted defendant’s request for an extension of the discovery

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cut-off to April 14, 2017. (ECF No. 44.) On June 13, 2017, the court denied plaintiff’s request

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for an extension of the discovery cut-off because plaintiff failed to explain what additional

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discovery he required and why he was unable to seek that information during the discovery

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period. (ECF No. 54.)

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In his current motion, plaintiff argues that he should be permitted to serve one more set of

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interrogatories because defendant’s responses to his prior sets of interrogatories were objections

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and plaintiff thought the discovery cut-off had passed. For a variety of reasons, plaintiff’s motion

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will be denied. Plaintiff does not explain what prior interrogatories he propounded or why he

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never sought to compel defendant to respond to those prior sets of interrogatories. Plaintiff had

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opportunities to do so and should have been aware that such motions were available because

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defendant moved to compel plaintiff to respond to discovery.

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Plaintiff also fails to explain what information he now seeks and why he was unable to

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seek it previously. Finally, plaintiff’s motion is untimely. Plaintiff waited until June 16, over two

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months after the close of discovery, to file his motion. Plaintiff fails to establish good cause for

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an extension of the discovery cut-off.

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II.

Request for Appointment of Counsel
Plaintiff requests the appointment of counsel because he is experiencing difficulties

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understanding defendant’s motion for summary judgment. (ECF No. 64.) “The United States

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Supreme Court has ruled that district courts lack authority to require counsel to represent indigent

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prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In

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certain exceptional circumstances, the district court may request the voluntary assistance of

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counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.

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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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III.

Request for Extension of Time

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Plaintiff states that he requires additional time to respond to the summary judgment

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motion because he is waiting for defendant’s responses to discovery. (ECF No. 63.) This reason

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does not establish good cause because, as described above, plaintiff is not entitled to further

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discovery. Nonetheless, the court recognizes that responding to a summary judgment motion is a

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time-consuming task. The court will grant plaintiff’s request for an extension of time.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for an extension of the discovery cut-off (ECF No. 60) is denied;

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2. Plaintiff’s motion for the appointment of counsel (ECF No. 64) is denied;

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3. Plaintiff’s motion for an extension of time (ECF No. 63) is granted; and

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3. By August 18, 2017, plaintiff shall file his response to defendant’s June 27, 2017

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motion for summary judgment. Any reply shall be filed and served in accordance with Local

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Rule 230(l).

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Dated: July 11, 2017

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DLB:9
DLB1/prisoner-civil rights/ford2588.31+36opp

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