Uribe v. Shinnette et al

Filing 45

ORDER signed by Magistrate Judge Deborah Barnes on 2/1/2019 DENYING plaintiff's 43 motion to withdraw his opposition to the summary judgment motion and file a new opposition brief; DENYING plaintiff's 43 motion for the issuance of a scheduling order; and DENYING plaintiff's 43 motion for the appointment of counsel. Within 30 days, plaintiff may file a motion to submit a sur-reply. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOEL URIBE,

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Plaintiff,

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No. 2:18-cv-0689 JAM DB P

v.

ORDER

E. SHINNETTE, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action. Plaintiff alleges

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Eighth Amendment claims of excessive force and failure to protect. In a document filed January 11,

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2019, plaintiff moves: (1) to withdraw his opposition to defendants’ summary judgment motion,

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(2) to file a new opposition or a “replication brief,” (3) for the court to enter a scheduling order,

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and (4) for the appointment of counsel. (ECF No. 43.) For the reasons set forth below, the court

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will permit plaintiff to re-submit his motion as a request to file a sur-reply. In all other respects,

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the court will deny plaintiff’s motion.

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Plaintiff seeks to “cure the deficiencies” in his opposition to defendants’ summary

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judgment motion by filing a new opposition. In the alternative, plaintiff appears to be seeking the

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right to file a response to defendants’ reply brief. The court understands that plaintiff is frustrated

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by his lack of knowledge of the law. However, plaintiff was given ample time, including a 60-

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day extension of time, to file his opposition. (See ECF No. 32.) The court will not allow plaintiff

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to withdraw that document or replace it with a new opposition brief.

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The court will permit plaintiff to re-file his motion to show that he should be entitled to

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file a response to defendants’ reply brief, called a “sur-reply.” While the Local Rules do not

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authorize the routine filing of a sur-reply, E.D. Cal. R. 230(l), the court may allow a sur-reply

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“where a valid reason for such additional briefing exists, such as where the movant raises new

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arguments in its reply brief.” Hill v. England, No. CVF05869RECTAG, 2005 WL 3031136, at

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*1 (E.D. Cal. Nov. 8, 2005); accord Norwood v. Byers, No. 2:09-cv-2929 LKK AC P, 2013 WL

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3330643, at *3 (E.D. Cal. July 1, 2013) (granting the motion to strike the sur-reply because

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“defendants did not raise new arguments in their reply that necessitated additional argument from

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plaintiff, plaintiff did not seek leave to file a sur-reply before actually filing it, and the arguments

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in the sur-reply do not alter the analysis below”), rep. and reco. adopted, 2013 WL 5156572 (E.D.

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Cal. Sept. 12, 2013). If plaintiff can show that new arguments were raised in defendants’ reply

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brief or another valid reason to file a sur-reply, he may be permitted to do so.

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With respect to plaintiff’s remaining requests, the court first notes that a scheduling order

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is not appropriate at this time. Plaintiff’s second request is for the appointment of counsel. He

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argues that he is inexperienced in the law and is unable to counter defendants’ many legal

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arguments.

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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, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to withdraw his opposition to the summary judgment motion and

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file a new opposition brief (ECF No. 43) is denied.

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2. Within thirty days of the date of this order, plaintiff may file a motion to submit a sur-

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reply. Plaintiff is cautioned that he must give the court a valid reason to file a sur-

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reply, such as showing that defendants raised new issues in their reply brief that

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necessitate a response from him.

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3. Plaintiff’s motion for the issuance of a scheduling order (ECF No. 43) is denied.

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4. Plaintiff’s motion for the appointment of counsel (ECF No. 43) is denied.

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Dated: February 1, 2019

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DLB:9
DB/prisoner-civil rights/urib0689.31(2)

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