Moore v. Stepp et al

Filing 75

ORDER by Judge Claudia WilkenDENYING PLAINTIFF'S 63 MOTION FOR APPOINTMENT OF COUNSEL AND ORDER FOR DEFENDANTS TO RESPOND TO PLAINTIFF'S DISCOVERY ( 55 , 64 ) MOTIONS. (Attachments: # 1 Certificate/Proof of Service) (ndr, COURT STAFF) (Filed on 10/2/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MERRICK JOSE MOORE,

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C 11-05395 CW (PR)

Plaintiff,

ORDER DENYING
PLAINTIFF'S MOTION
FOR APPOINTMENT OF
COUNSEL AND ORDER
FOR DEFENDANTS TO
RESPOND TO
PLAINTIFF'S
DISCOVERY MOTIONS

v.
L. STEPP, et al.,
Defendants.

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United States District Court
For the Northern District of California

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Docket Nos. 55, 63,
64

________________________________/

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INTRODUCTION

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Plaintiff, a state prisoner currently incarcerated at

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Corcoran State Prison (CSP), filed a pro se civil rights action

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pursuant to 42 U.S.C. § 1983, alleging the violation of his

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constitutional rights by correctional officers at Salinas Valley

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State Prison (SVSP), where he was incarcerated previously.

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On July 5, 2013, Plaintiff moved for a protective order

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claiming that staff at CSP were retaliating against him for filing

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this complaint against Defendants.

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Magistrate Judge Nandor Vadas who, on July 26, 2013, denied the

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motion on the ground that the individuals Plaintiff named in his

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motion were not Defendants in this action and, thus, the Court

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lacked jurisdiction to issue a protective order.

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The matter was referred to

See Doc. no. 54.

On August 2, 2013, Plaintiff moved to extend the discovery

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cut-off date in this case, on September 13, 2013, he moved for

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appointment of counsel and, on September 20, 2013, he moved to

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compel discovery.

Defendants have not responded to Plaintiff's

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August 2nd motion to extend the discovery cut-off date, although

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the time to file an opposition has passed.

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filed by Plaintiff, the Court denies his motion for appointment of

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counsel and orders Defendants to respond to Plaintiff's discovery

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motions.

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Having read the papers

DISCUSSION
I. Motion to Appoint Counsel
Plaintiff argues that he requires representation by counsel
because the issues in this case are complex and require

United States District Court
For the Northern District of California

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significant research and investigation.

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trial will likely involve conflicting testimony and counsel would

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be better prepared to cross-examine witnesses and present

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evidence.

He also argues that a

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The decision to request counsel to represent an indigent

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litigant under § 1915 is within “the sound discretion of the trial

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court and is granted only in exceptional circumstances.”

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v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984).

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“exceptional circumstances” of the plaintiff seeking assistance

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requires an evaluation of the likelihood of the plaintiff’s

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success on the merits and an evaluation of the plaintiff’s ability

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to articulate his claims pro se in light of the complexity of the

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legal issues involved.

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390 F.3d 1101, 1103 (9th Cir. 2004).

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discovery, nor the fact that the pro se litigant would be better

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served with the assistance of counsel, necessarily qualify the

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issues involved as complex.

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(9th Cir. 1997), withdrawn on other grounds, 154 F.3d 952 (9th

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Cir. 1998).

Franklin

A finding of the

Agyeman v. Corrections Corp. of America,
Neither the need for

Rand v. Rowland, 113 F.3d 1520, 1525

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Plaintiff is capable of presenting his claims effectively,

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and the issues, at least at this stage, are not complex.

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circumstances of this case materially change, this decision will

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be reconsidered by the Court on its own motion.

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motion to appoint counsel is DENIED.

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II. Discovery Motions

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If the

Therefore, the

In his motion to extend the discovery cut-off date, Plaintiff

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appears to be objecting to the Magistrate Judge's denial of a

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protective order as well as requesting an extension of the

United States District Court
For the Northern District of California

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discovery cut-off date.

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to the Magistrate Judge's ruling, it is DENIED.

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issue orders against individuals over whom it has no jurisdiction.

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If Plaintiff believes that prison officers are committing

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constitutional violations against him, he has the right to file a

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separate lawsuit against them for those violations.

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To the extent that this is an objection
A court cannot

Turning to Plaintiff's discovery motions, Defendants are

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ordered to respond to them.

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motion to compel discovery, he submits ten requests for production

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of documents that he states he sent to Defendants on July 7, 2013,

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but that Defendants have not responded.

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the documents requested may be such that would be produced in the

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ordinary course of discovery.

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In Plaintiff's September 20, 2013

It appears that some of

CONCLUSION

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Based on the foregoing, the Court orders as follows:

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1. Plaintiff's Motion to Appoint Counsel is Denied.

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Doc. no.

63.
2. Plaintiff's objection to the Magistrate's Judge's Order is
denied.

Doc. no. 64.
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3. Defendants are ordered to respond to Plaintiff's discovery

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motions within two weeks from the date of this Order.

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may file a reply within two weeks thereafter.

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Plaintiff

4. The date for Plaintiff's opposition to Defendants' summary

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judgment motion is VACATED.

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for the opposition and reply when the discovery motions are

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resolved.

The Court will issue a new schedule

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5. This Order terminates Docket no. 63.

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IT IS SO ORDERED.

United States District Court
For the Northern District of California

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Dated: 10/2/2013
CLAUDIA WILKEN
United States District Judge

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