Etuate Sekona v. Lizarraga et al

Filing 59

ORDER signed by Magistrate Judge Edmund F. Brennan on 3/28/2019 ORDERING plaintiff's 38 motion for extension of time is DENIED; plaintiff's 35 , 40 motions for appointment of counsel are DENIED; plaintiff's 44 motion for appoint ment of a Tongan interpreter is DENIED; and plaintiff's 46 motion for extension of time is GRANTED. Within 30 days, defendants shall respond to the requests and interrogatories which plaintiff served on 12/2/2018. Any motion to compel must be filed no later than 30 days after defendants submit their responses. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ETUATE SEKONA,

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No. 2:17-cv-0346-KJM-EFB P

Plaintiff,
v.

ORDER

JOE A. LIZARRAGA, 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. He has filed several motions which are now pending before the court.

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Specifically, he has filed: (1) two motions for extension of time to complete discovery (ECF Nos.

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38 & 46); (2) two motions to appoint counsel (ECF Nos. 35 & 40); and (3) a motion for Tongan

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interpreter (ECF No. 44). For the reasons stated hereafter, plaintiff’s motions to appoint counsel

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and his motion for an interpreter are denied. With respect to his motions for extension of time,

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his first is denied and his second is granted.

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Motions to Appoint Counsel

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Plaintiff requests that the court appoint counsel to represent him in this case. District

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courts lack authority to require counsel to represent indigent prisoners in section 1983 cases.

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

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the court may request an attorney to voluntarily to represent such a plaintiff. See 28 U.S.C.
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§ 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900

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F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional circumstances”

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exist, the court must consider the likelihood of success on the merits as well as the ability of the

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plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved.

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Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Having considered those factors, the court

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finds there are no exceptional circumstances in this case. Notably, plaintiff has proven capable of

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litigating his claims to this point without appointed counsel. And the court has previously denied

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similar requests for counsel from plaintiff. See ECF No. 21 at 1-2. Circumstances in this case

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have not sufficiently changed to warrant reconsideration of that denial.

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Motion for a Tongan Interpreter
Plaintiff requests that the court appoint a Tongan interpreter to assist him.1 He states that

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Tongan is his primary language and that his English is limited. ECF No. 44. Additionally,

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plaintiff claims that he was assaulted in November 17, 2018 and still has “blood . . . in his brain”

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which is causing him confusion and dizziness. Id. The court is not unsympathetic to the

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difficulty plaintiff faces in litigating this case. Nevertheless, this motion is denied for two

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reasons. First, plaintiff has thus far demonstrated an ability to submit intelligible filings without

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the assistance of an interpreter. Second, the court is not aware of any authority which would

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authorize expenditure of public funds for the appointment of an interpreter in this civil action.

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See, e.g. Loyola v. Potter, 2009 U.S. Dist. LEXIS 36179, 2009 WL 1033398, at *2 (N.D. Cal.

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Apr. 16, 2009) (“The court is not authorized to appoint interpreters for litigants in civil cases, and,

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moreover, has no funds to pay for such a program.”). Thus, this motion must be denied.

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Motions for Extension of Time
The scheduling order permitted the parties to conduct discovery until February 1, 2019.

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ECF No. 29 at 4. In light of that overarching deadline, it also informed the parties that all

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requests for discovery pursuant to Fed. R. Civ. P. 31, 33, 34, or 36 were to be served no later than

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Defendants filed a response to the motion solely for the purpose of contradicting
plaintiff’s statement that opposing counsel was joining in his motion for an interpreter. ECF No.
45.
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November 30, 2018. Id. Plaintiff has filed two motions for extension of the deadline for

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discovery requests.

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The first of these motions, filed December 3, 2018, alleges that plaintiff was hospitalized

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from November 17, 2018 until November 20, 2018. ECF No. 38 at 1. It also stated that

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plaintiff’s access to the law library had been limited. Id. The motion did not specify a specific

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date for a new deadline nor indicate the amount of time being sought by the request.

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The second motion, filed January 7, 2019, asks the court to excuse his delay in serving

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discovery requests on defendants. ECF No. 46 at 1. Attached to the motion is a letter from

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defendants’ counsel which states that due to the late service of plaintiff’s requests and

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interrogatories (served on December 2, 2018), defendants would not be offering responses. Id. at

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Plaintiff’s first motion for extension of time is denied for failure to explicitly state what

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new deadline plaintiff seeks. The second motion is granted. In so doing, the court recognizes

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that: (1) plaintiff is a layman; (2) he claims that medical issues prevented compliance with the

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court’s November 30, 2018 deadline; and (3) the service date – December 2, 2018 – is indicative

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of a good faith attempt to comply with the deadline. Thus, the court deems the requests served on

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December 2, 2018 timely and direct defendants to respond within thirty days of the date of this

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order.

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The court recognizes that excusing plaintiff’s delay in serving discovery requests may also

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necessitate the allowance of an untimely motion to compel related to those requests. If he deems

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it necessary, plaintiff should file such a motion no later than thirty days after service of

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defendants’ responses. The court will not otherwise modify the scheduling order at this time. If

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either party determines that further modification is necessary in light of this late discovery, it may

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request such modification by way of a properly supported motion and the court will evaluate

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whether good cause exists to further modify the scheduling order.

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Finally, the court cautions plaintiff that this one-time excusal of delay is not an invitation

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to submit new discovery requests beyond those already served on defendants.

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Conclusion

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Based on the foregoing, it is ORDERED that:

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1. Plaintiff’s motion for extension of time (ECF No. 38) is DENIED;

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2. Plaintiff’s motions for appointment of counsel (ECF Nos. 35 & 40) are DENIED;

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3. Plaintiff’s motion for appointment of a Tongan interpreter (ECF No. 44) is DENIED;

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and
4. Plaintiff’s motion for extension of time (ECF No. 46) is GRANTED. Within thirty

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days of the date of this order, defendants shall respond to the requests and interrogatories which

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plaintiff served on December 2, 2018. Any motion to compel must be filed no later than thirty

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days after defendants submit their responses.

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DATED: March 28, 2019.

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