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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CONDALEE MORRIS, Plaintiff, 8 9 10 United States District Court Northern District of California 11 Case No. 12-cv-06132-JD ORDER DENYING MOTIONS v. Re: Dkt. Nos. 262, 264 D. SANDOVAL, et al., Defendants. 12 13 Plaintiff, a state prisoner, proceeds with a pro se civil rights complaint under 42 U.S.C. § 14 1983 and trial is scheduled for May 22, 2017. Plaintiff has filed a motion requesting funds to 15 appoint an expert witness and for the appointment of co-counsel. Plaintiff’s request for funds is 16 denied for the same reasons set forth in the Court’s prior order (Docket No. 261). 17 The Ninth Circuit has held that a district court may ask counsel to represent an indigent 18 litigant only in “exceptional circumstances,” the determination of which requires an evaluation of 19 both (1) the likelihood of success on the merits, and (2) the ability of the plaintiff to articulate his 20 claims pro se in light of the complexity of the legal issues involved. Terrell v. Brewer, 935 F.2d 21 1015, 1017 (9th Cir. 1991). The Court has already appointed counsel for plaintiff on two separate 22 occasions. Plaintiff did not want the counsel that was appointed the first time (Docket Nos. 152- 23 155) and plaintiff demanded that the second counsel also withdraw so he could represent himself 24 pro se (Docket No. 211). The Court has limited resources in requesting attorneys to represent pro 25 se plaintiffs and plaintiff has failed to demonstrate exception circumstances to warrant the third 26 appointment of counsel. 27 28 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) 1 contemplates that the expert would be paid by the parties, but here the defendants would have to 2 bear the entire cost because plaintiff is proceeding in forma pauperis. There is no showing that it 3 is appropriate or fair to require the defendants to bear the sole burden of paying an expert witness 4 to present plaintiff’s point of view. CONCLUSION 5 6 1. Plaintiff’s motion for funds and to appoint counsel (Docket No. 262) is DENIED. 7 2. Plaintiff’s motion for reconsideration (Docket No. 264) is DENIED for the reasons 8 set forth in the Court’s prior order (Docket No. 253). 9 10 United States District Court Northern District of California 11 IT IS SO ORDERED. Dated: April 25, 2017 12 13 JAMES DONATO United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 CONDALEE MORRIS, Case No. 12-cv-06132-JD Plaintiff, 5 v. CERTIFICATE OF SERVICE 6 7 D. SANDOVAL, et al., Defendants. 8 9 10 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 11 12 13 14 15 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. 16 17 18 Condalee Morris ID: #:V96203 Calif. State Prison, Sacramento P.O. Box 290066 Represa, CA 95671 19 20 21 Dated: April 25, 2017 22 23 Susan Y. Soong Clerk, United States District Court 24 25 26 27 By:________________________ LISA R. CLARK, Deputy Clerk to the Honorable JAMES DONATO 28 3

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