Stribling v. Brown et al

Filing 36

ORDER by Judge Yvonne Gonzalez Rogers denying 11 Motion for Court to Order Defendants to File Answer; and denying Motion for Appointment of Counsel. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 2/7/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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AARON LAMONT STRIBLING,

Case No. 15-cv-03337-YGR (PR)

Plaintiff,
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v.
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CORRECTIONAL OFFICER BROWN,
et al.,

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Defendants.

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United States District Court
Northern District of California

ORDER DENYING PLAINTIFF’S
REQUEST FOR COURT TO ORDER
DEFENDANTS TO FILE ANSWER;
AND DENYING HIS MOTION FOR
APPOINTMENT OF COUNSEL

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Plaintiff requests that the Court direct Defendants to file an answer to the complaint. The
request is DENIED. Dkt. 11. On March 10, 2016, Defendants filed a waiver of reply pursuant to
42 U.S.C. § 1997e(g) (allowing a defendant to “waive the right of reply” in a civil rights action
filed by a prisoner, providing that such a waiver is not an admission of the allegations in the
complaint, and disallowing relief for the plaintiff unless a reply has been filed). In their waiver,
Defendants correctly noted that the Court had not yet required a reply, pursuant to 42 U.S.C.
§ 1997e(g)(2). Instead, Defendants have since filed a dispositive motion, which is currently
before this Court. See Dkt. 18.
Plaintiff also has requested that counsel be appointed to represent him in this action. See
Dkt. 11 at 1. A district court has the discretion under 28 U.S.C. §1915(e)(1) to designate counsel
to represent an indigent civil litigant in exceptional circumstances. See Wilborn v. Escalderon,
789 F.2d 1328, 1331 (9th Cir. 1986). This requires an evaluation of both the likelihood of success
on the merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity
of the legal issues involved. See id. Neither of these factors is dispositive and both must be
viewed together before deciding on a request for counsel under § 1915(e)(1). Here, exceptional
circumstances requiring the appointment of counsel are not evident at this time. The request for
appointment of counsel is DENIED. Dkt. 11.

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This Order terminates Docket No. 11.

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IT IS SO ORDERED.

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Dated: February 7, 2017
______________________________________
YVONNE GONZALEZ ROGERS
United States District Judge

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United States District Court
Northern District of California

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