Morris v. Sandoval et al

Filing 265

ORDER by Judge James Donato denying 262 Ex Parte Application ; denying 264 Motion for Reconsideration. (lrcS, COURT STAFF) (Filed on 4/25/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CONDALEE MORRIS,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 12-cv-06132-JD

ORDER DENYING MOTIONS

v.

Re: Dkt. Nos. 262, 264
D. SANDOVAL, et al.,
Defendants.

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Plaintiff, a state prisoner, proceeds with a pro se civil rights complaint under 42 U.S.C. §

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1983 and trial is scheduled for May 22, 2017. Plaintiff has filed a motion requesting funds to

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appoint an expert witness and for the appointment of co-counsel. Plaintiff’s request for funds is

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denied for the same reasons set forth in the Court’s prior order (Docket No. 261).

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The Ninth Circuit has held that a district court may ask counsel to represent an indigent

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litigant only in “exceptional circumstances,” the determination of which requires an evaluation of

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both (1) the likelihood of success on the merits, and (2) the ability of the plaintiff to articulate his

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claims pro se in light of the complexity of the legal issues involved. Terrell v. Brewer, 935 F.2d

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1015, 1017 (9th Cir. 1991). The Court has already appointed counsel for plaintiff on two separate

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occasions. Plaintiff did not want the counsel that was appointed the first time (Docket Nos. 152-

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155) and plaintiff demanded that the second counsel also withdraw so he could represent himself

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pro se (Docket No. 211). The Court has limited resources in requesting attorneys to represent pro

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se plaintiffs and plaintiff has failed to demonstrate exception circumstances to warrant the third

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appointment of counsel.

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To the extent plaintiff seeks the Court to appoint an expert witness pursuant to Federal
Rule of Evidence 706, the request is denied. In a civil rights action such as this, Rule 706(b)

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contemplates that the expert would be paid by the parties, but here the defendants would have to

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bear the entire cost because plaintiff is proceeding in forma pauperis. There is no showing that it

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is appropriate or fair to require the defendants to bear the sole burden of paying an expert witness

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to present plaintiff’s point of view.
CONCLUSION

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1.

Plaintiff’s motion for funds and to appoint counsel (Docket No. 262) is DENIED.

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2.

Plaintiff’s motion for reconsideration (Docket No. 264) is DENIED for the reasons

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set forth in the Court’s prior order (Docket No. 253).

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United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: April 25, 2017

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JAMES DONATO
United States District Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CONDALEE MORRIS,

Case No. 12-cv-06132-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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D. SANDOVAL, et al.,
Defendants.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.

United States District Court
Northern District of California

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That on April 25, 2017, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Condalee Morris ID: #:V96203
Calif. State Prison, Sacramento
P.O. Box 290066
Represa, CA 95671

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Dated: April 25, 2017

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

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