Trujillo v. Jacquez et al

Filing 80

ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION OF DENIAL OF APPOINTMENT OF COUNSEL 77 ;GRANTING HIM EXTENSION OF TIME TO FILE AMENDED SUPERVISORY LIABILITY CLAIM AGAINST DEFENDANT JACQUEZ PRO SE; AND DIRECTING HIM TO ATTEND DEPOSITION PRO SE 76 by Judge Yvonne Gonzalez Rogers (Attachments: # 1 Certificate/Proof of Service) (fs, COURT STAFF) (Filed on 5/1/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MARIO TRUJILLO,

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No. C 10-5183 YGR (PR)
ORDER DENYING PLAINTIFF'S
MOTION FOR RECONSIDERATION OF
DENIAL OF APPOINTMENT OF
COUNSEL; GRANTING HIM
EXTENSION OF TIME TO FILE
AMENDED SUPERVISORY LIABILITY
CLAIM AGAINST DEFENDANT
JACQUEZ PRO SE; AND DIRECTING
HIM TO ATTEND DEPOSITION PRO SE

Plaintiff,

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vs.
FRANCISCO JACQUEZ, et. al.,
Defendants.

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(Docket nos. 76, 77, 77-2)

United States District Court
For the Northern District of California

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Plaintiff Mario Trujillo, a state prisoner currently incarcerated in Pelican Bay State Prison

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(PBSP), filed this pro se civil rights action under 42 U.S.C. § 1983 against prison officials at PBSP

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for injuries incurred in 2009.

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Before the Court are Plaintiff's "Motion Requesting Leave[] to File a Motion for

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Reconsideration for Appointment of Counsel" (docket no. 77); "Motion for Reconsideration for

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Appointment of Counsel" (docket no. 77-2); and "Request to Post-Pone [sic] Defendants' Deposition

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of Plaintiff Mario Trujillo" (docket no. 76).

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Plaintiff's initial request for the appointment of counsel was denied.1 He now requests leave

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to file a motion asking the Court to reconsider its denial of his request for appointment of counsel.

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This request (docket no. 77) is hereby GRANTED.

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In his motion for the Court to reconsider its prior ruling and appoint counsel to represent

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him, Plaintiff proposes that the Court assign counsel "for any, some or all, of the following reasons:

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to file an amended complaint as to liability claim against defendant Francisco Jacquez, to assist

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Plaintiff at settlement conference and to assist Plaintiff at the deposition" (docket no. 77-1).

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There is no constitutional right to counsel in a civil case unless an indigent litigant may lose

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his physical liberty if he loses the litigation. See Lassiter v. Dep't of Social Services, 452 U.S. 18, 25

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(1981); Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (no constitutional right to counsel in

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On May 25, 2011, the Honorable Jeremy Fogel, to whom this case was initially assigned,
denied Plaintiff's initial request for appointment of counsel.

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§ 1983 action), withdrawn in part on other grounds on reh'g en banc, 154 F.3d 952 ( 9th Cir. 1998)

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(en banc). The Court may ask counsel to represent an indigent litigant under 28 U.S.C. § 1915 only

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in "exceptional circumstances," the 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 plaintiff to articulate his claims pro se

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in light of the complexity of the legal issues involved. See id. at 1525; Terrell v. Brewer, 935 F.2d

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1015, 1017 (9th Cir. 1991); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). Both of

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these factors must be viewed together before reaching a decision on a request for counsel under

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§ 1915. See id.

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The Court has recently conducted a careful review of all admissible evidence submitted in

United States District Court
For the Northern District of California

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connection with Defendants' previously-filed Motion for Summary Judgment. Taking into

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consideration this review, and Plaintiff's ability to articulate his claims pro se in light of the

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complexity of the legal issues involved, the Court finds that exceptional circumstances entitling

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Plaintiff to court appointed counsel do not exist at this time. Accordingly, the request that the Court

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reconsider its initial denial of Plaintiff's request for appointment of counsel is DENIED without

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prejudice to renewing his request if this action is not resolved after the upcoming settlement

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proceedings.2

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Plaintiff's amended supervisory liability claim against Defendant Jacquez is presently

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overdue because the April 16, 2012 deadline to amend has passed. In addition, as explained above,

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the Court finds that appointment of counsel is not warranted at this time. The Court, on its own

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motion, GRANTS Plaintiff an extension of time in which to file his amended claim pro se. The time

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in which Plaintiff may file his amended claim will be extended up to and including thirty (30) days

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from the date of this Order. Plaintiff must clearly label the document an "Amendment to the

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Complaint," and write in the case number for this action, Case No. C 10-5183 YGR (PR). The

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failure to do so by the thirty-day deadline will result in the dismissal without prejudice of his

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supervisory liability claim against Defendant Jacquez.

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Finally, Plaintiff moves the Court to postpone the date of his deposition. Because Plaintiff's

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The parties are scheduled to appear before Magistrate Judge Vadas for settlement
proceedings on June 13, 2012 at 10 am.
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deposition was scheduled to occur on April 25, 2012, his motion (docket no. 76) is denied as moot.

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Again, as explained above, Plaintiff's request for reconsideration of the Court's denial of his motion

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for appointment of counsel has been denied. Accordingly, he must attend, pro se, the next properly

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noticed deposition scheduled by Defendants.

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This Order terminates Docket nos. 76, 77, and 77-2.

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IT IS SO ORDERED.

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DATED:

May 1, 2012

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YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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United States District Court
For the Northern District of California

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G:\PRO-SE\YGR\CR.10\Trujillo5183.denyrecounsel&eotfileAMDclaim.wpd

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