Williams v. Tootell et al

Filing 29

ORDER DENYING 27 Motion to Appoint Counsel filed by Michael Jerome Williams, DENYING 28 Motion for Extension of Time filed by Michael Jerome Williams, AND SETTING NEW BRIEFING SCHEDULE. Signed by Magistrate Judge Donna M. Ryu on 1/20/16. (ig, COURT STAFF) (Filed on 1/20/2016)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 9 MICHAEL JEROME WILLIAMS, Case No. 15-cv-01995-DMR (PR) Plaintiff, 10 v. United States District Court Northern District of California 11 12 ELENA TOOTELL, M.D., et al., Defendants. ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL; DENYING HIS REQUEST FOR EXTENSION OF TIME; AND SETTING NEW BRIEFING SCHEDULE 13 14 Plaintiff, a state prisoner, has filed a pro se civil rights action pursuant to 42 U.S.C. § 1983, 15 alleging that Defendants were deliberately indifferent to his safety and medical needs. Plaintiff 16 and Defendants have consented to magistrate judge jurisdiction. Dkt. 1 at 11; Dkts. 22, 26. 17 Therefore, this matter has been assigned to the undersigned Magistrate Judge. Dkts. 5, 6. In an 18 Order dated October 9, 2015, the court issued its Order of Service. Dkt. 9. On December 8, 2015, 19 Defendant J. Clark Kelso filed an answer to the complaint.1 Dkt. 21. 20 Before the court is Plaintiff’s motion for appointment of counsel to represent him in this 21 action. Dkt. 27. Also before the court is Plaintiff’s motion for an extension of time to prepare a 22 response to Defendant Kelso’s answer. Dkt. 28. PLAINTIFF’S REQUEST FOR APPOINTMENT OF COUNSEL 23 24 There is no constitutional right to counsel in a civil case unless an indigent litigant may 25 lose his physical liberty if he loses the litigation. See Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 26 25 (1981); Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (no constitutional right to 27 1 28 Defendants E. Tootell and J. Lewis have waived their right to file a reply to the complaint under 28 U.S.C. § 1997e(g). Dkts. 23, 24. 1 counsel in section 1983 action), withdrawn in part on other grounds on reh’g en banc, 154 F.3d 2 952 (9th Cir. 1998) (en banc). The court may ask counsel to represent an indigent litigant under 3 28 U.S.C. § 1915 only in “exceptional circumstances,” the determination of which requires an 4 evaluation of both (1) the likelihood of success on the merits, and (2) the ability of the plaintiff to 5 articulate his claims pro se in light of the complexity of the legal issues involved. See id. at 1525; 6 Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wilborn v. Escalderon, 789 F.2d 1328, 7 1331 (9th Cir. 1986). Both of these factors must be viewed together before reaching a decision on 8 a request for counsel under section 1915. See id. 9 The court is unable to assess at this time whether exceptional circumstances exist which would warrant seeking volunteer counsel to accept a pro bono appointment. The proceedings are 11 United States District Court Northern District of California 10 at an early stage and it is premature for the court to determine Plaintiff’s likelihood of success on 12 the merits. Moreover, Plaintiff has been able to articulate his claims adequately pro se in light of 13 the complexity of the issues involved. See Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103 14 (9th Cir. 2004). Accordingly, the request for appointment of counsel is DENIED without 15 prejudice.2 Dkt. 27. PLAINTIFF’S MOTION FOR EXTENSION OF TIME 16 17 18 Plaintiff’s motion for an extension of time to prepare a response to Defendant Kelso’s answer is DENIED. Dkt. 28. Plaintiff need not respond to Defendant Kelso’s answer. NEW BRIEFING SCHEDULE 19 20 In order to expedite the resolution of this case, the court issues a new briefing schedule. 21 Defendants shall serve and file a joint motion for summary judgment or other joint dispositive 22 motion by no later than February 15, 2016. If Defendants are of the opinion that this case cannot 23 be resolved by summary judgment or other dispositive motion, they shall so inform the court prior 24 to the date their motion is due. 25 2 26 27 28 This does not mean, however, that the court will not consider appointment of counsel at a later juncture in the proceedings; that is, after Defendants have filed their dispositive motion such that the court will be in a better position to consider the procedural and substantive matters at issue. Therefore, Plaintiff may file a renewed motion for the appointment of counsel after Defendants’ dispositive motion has been filed. If the court decides that appointment of counsel is warranted at that time, it will seek volunteer counsel to agree to represent Plaintiff pro bono. 2 1 Plaintiff’s opposition to the joint dispositive motion shall be filed with the court and served 2 on Defendants no later than twenty-eight (28) days after the date on which Defendants’ joint 3 dispositive motion is filed. 4 5 Defendants shall file a reply brief no later than fourteen (14) days after the date Plaintiff’s opposition is filed. 6 This Order terminates Docket Nos. 27 and 28. 7 IT IS SO ORDERED. 8 9 Dated: January 20, 2016 ______________________________________ DONNA M. RYU United States Magistrate Judge 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 MICHAEL JEROME WILLIAMS, Case No. 4:15-cv-01995-DMR Plaintiff, 5 v. CERTIFICATE OF SERVICE 6 7 E. TOOTELL, et al., Defendants. 8 9 10 United States District Court Northern District of California 11 12 13 14 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 January 20, 2016, 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. 15 16 17 18 Michael Jerome Williams T-30101 San Quentin State Prison 1 Main Street San Quentin, CA 94974 19 20 Dated: January 20, 2016 21 22 Susan Y. Soong Clerk, United States District Court 23 24 25 26 27 By:________________________ Ivy Lerma Garcia, Deputy Clerk to the Honorable DONNA M. RYU 28 4

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