Lipsey v. Kalil, et al.

Filing 60

ORDER signed by Magistrate Judge Allison Claire on 11/1/2021 DENYING plaintiff's 57 request for appointment of counsel. Within 21 days, defendants shall file a response to plaintiff's motion for sanctions and to compel. Plaintiff may file a reply within fourteen days of service of the response. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHRISTOPHER LIPSEY, JR.,

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No. 2:17-cv-1429 TLN AC P

Plaintiff,

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v.

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M. KALIL, et al.,

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ORDER

Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42

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U.S.C. § 1983. By order filed October 22, 2021, plaintiff was given the opportunity to file either

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an opposition to defendants’ motion for summary judgment, in which case discovery would be

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stayed, or a motion to compel, in which case briefing on the motion for summary judgment would

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be stayed. ECF No. 56. Plaintiff has now filed a document styled as an “emergency notice,” in

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which he states that he is concerned his case will be dismissed if he is not appointed counsel and

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accuses defendants of using delay tactics to deprive him of discovery necessary to defend against

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both exhaustion and merit-based summary-judgment motions. ECF No. 57. Plaintiff has also

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filed a motion for sanctions and to compel. ECF No. 58.

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To the extent plaintiff is seeking appointment of counsel, that request will be denied. The

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United States Supreme Court has ruled that district courts lack authority to require counsel to

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represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296,
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298 (1989). In certain exceptional circumstances, the district court may request the voluntary

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

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(9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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“When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the

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likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims

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pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965,

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970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden

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of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to

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most prisoners, such as lack of legal education and limited law library access, do not establish

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exceptional circumstances that would warrant a request for voluntary assistance of counsel.
Plaintiff’s concern that his case will be dismissed if he is not appointed counsel is one

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shared by most prisoner-plaintiffs and does not provide grounds for appointing counsel.

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Furthermore, though he expresses concerns about his ability to obtain discovery, in granting

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defendants’ motion to stay discovery, the undersigned made an explicit exception for motions to

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compel responses to discovery related to plaintiff’s exhaustion of his administrative remedies.

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ECF No. 51 at 2. It was further provided that if defendants’ motion for summary judgment was

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denied, plaintiff would be given an opportunity to renew his motion to compel with respect to

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merit-based discovery requests. Id. Plaintiff has therefore failed to demonstrate that

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extraordinary circumstances exist that warrant the appointment of counsel.

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With respect to plaintiff’s request for sanctions and to compel, he states that the

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regulations he received, as well as the operational procedures and Department Operations Manual

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sections, were related to law library access, not to the appeals process. ECF No. 58 at 1-2. He

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also states that Interrogatories 6, 7, 10, 11, 13, 21, and 22 all related to exhaustion and are

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therefore relevant to the motion for summary judgment, and that defendants’ objections are

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without merit. Id. at 4. The motion is accompanied by a copy of the requests and a letter from

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defendants’ counsel, which appears to be their response to the requests. Id. at 9-10, 15-23.

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Because plaintiff has filed a motion to compel, briefing on the motion for summary judgment will

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be stayed, and defendants shall file a response to the motion for sanction and to compel.
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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for appointment of counsel, ECF No. 57, is DENIED.

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2. Within twenty-one days of the filing of this order, defendants shall file a response to

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plaintiff’s motion for sanctions and to compel. Plaintiff may file a reply within fourteen days of

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service of the response.

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DATED: November 1, 2021

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