Flowers v. Alameda County Sheriffs et al

Filing 80

ORDER by Judge Claudia Wilken DENYING PLAINTIFF'S MOTIONS 77 TO COMPEL, 78 FOR EXTENSION OF TIME TO OPPOSE MOTION FOR SUMMARY JUDGMENT AND 79 FOR APPOINTMENT OF COUNSEL. (ndr, COURT STAFF) (Filed on 7/20/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JOSEPH J. FLOWERS,

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Plaintiff,
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v.
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ALAMEDA COUNTY SHERIFF GREGORY
AHERN, et al.,

ORDER DENYING PLAINTIFF'S
MOTIONS TO COMPEL, FOR
EXTENSION OF TIME TO OPPOSE
MOTION FOR SUMMARY JUDGMENT AND
FOR APPOINTMENT OF COUNSEL

Defendants.
_____________________________

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United States District Court
For the Northern District of California

No. C 08-4179 CW (PR)

Plaintiff Joseph J. Flowers, a state prisoner, filed this pro

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se civil rights action concerning events that took place when he

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was a pretrial detainee at the Alameda County jail.

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dated November 24, 2010, the Court ordered Plaintiff's Third

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Amended Complaint (TAC) served on nine Defendants.

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By Order

Defendants filed a motion for summary judgment on May 13,

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2011.

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telephone access and to propound additional interrogatories.

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Thereafter, Plaintiff filed motions for Court-ordered

By Order dated June 23, 2011, the Court denied Plaintiff's

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motions and set discovery and briefing schedules.

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in the Conclusion of the Order the Court ordered as follows:

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3.
The parties shall abide by the following discovery
schedule:

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Specifically,

a.
No later than July 5, 2011, the parties
shall complete all discovery and shall meet
and confer regarding all outstanding discovery
matters that the parties have been unable to
resolve.
b.
If Plaintiff intends to file a motion to
compel discovery with respect to any
unresolved discovery matters, he shall do so,
and serve a copy on Defendants, no later than
July 15, 2011.
c.

Defendants shall file a response to

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Plaintiff's motion no later than July 25,
2011.

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d.
The motion shall be deemed submitted on
the date the response is filed.

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4.
The parties shall abide by the following briefing
schedule:

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a.
Plaintiff shall file with the Court and
serve on Defendants his opposition to
Defendants' motion for summary judgment no
later than August 15, 2011.1

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b.
Defendants shall file a reply brief no
later than September 1, 2011.

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c.
The motion for summary judgment shall be
deemed submitted on the date the reply is
filed.

United States District Court
For the Northern District of California

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5.
No extensions of time with respect to the above
deadlines will be granted absent compelling
circumstances.

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Order at 4:3-5:2 (footnote in original).
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On June 24, 2011, the day after the Court issued the above
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Order, Plaintiff sent to the Court a motion to compel discovery
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and a motion for extension of time to oppose Defendants' motion.
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It is clear from the text of Plaintiff's motions that such motions
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were prepared prior to Plaintiff's receipt of the Court's June 23,
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2011 Order.

As said Order sets schedules for discovery and the

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briefing of Defendants' motion for summary judgment, Plaintiff's
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motions are DENIED as moot.
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On July 12, 2011, Plaintiff filed a motion for the
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appointment of counsel to assist him with the preparation of his
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opposition to Defendants' motion for summary judgment.
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Because of the large number of claims in the instant action,
Plaintiff is advised that in order to meet the Court's deadline he
should, to the extent possible, begin preparing his opposition
even before all discovery matters have been resolved.
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Plaintiff's request is premised on his assertions that he has

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discovered new information that makes it likely he will prevail on

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his claims and that Defendants are misrepresenting the facts.

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support of his request, Plaintiff has attached more than 80 pages

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of Defendants' responses to Plaintiff's discovery requests.

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In

The court may ask counsel to represent an indigent litigant

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under 28 U.S.C. § 1915 only in "exceptional circumstances," the

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determination of which requires an evaluation of both (1) the

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likelihood of success on the merits, and (2) the ability of the

United States District Court
For the Northern District of California

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plaintiff to articulate his claims pro se in light of the

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complexity of the legal issues involved.

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F.3d 1520, 1525 (9th Cir. 1997).

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viewed together before reaching a decision on a request for

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counsel under § 1915.

Rand v. Rowland, 113

Both of these factors must be

Id.

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The Court finds the appointment of counsel is not warranted.

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Specifically, Plaintiff has not shown the requisite likelihood of

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success on the merits of his claims, he has adequately articulated

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his claims in light of the complexity of the legal issues

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involved, he has pursued discovery in a comprehensive and focused

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manner, and the motions and other papers he has filed in this

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matter have been generally articulate and organized.

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Accordingly, Plaintiff's motion is DENIED.

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This Order terminates Docket nos. 77, 78 and 79.

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See id.

IT IS SO ORDERED.

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Dated: 7/20/2011
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CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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JOSEPH J. FLOWERS,
Case Number: CV08-04179 CW

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Plaintiff,

CERTIFICATE OF SERVICE

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v.
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ALAMEDA COUNTY SHERIFF et al,
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Defendant.
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United States District Court
For the Northern District of California

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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.
That on July 20, 2011, 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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Joseph J. Flowers F82065
DVI Prison
P.O. Box 600
Tracy, CA 95378
Dated: July 20, 2011
Richard W. Wieking, Clerk
By: Nikki Riley, Deputy Clerk

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