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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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 AARON LAMONT STRIBLING, Case No. 15-cv-03337-YGR (PR) Plaintiff, 7 v. 8 9 CORRECTIONAL OFFICER BROWN, et al., 10 Defendants. 11 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 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. 1 This Order terminates Docket No. 11. 2 IT IS SO ORDERED. 3 4 5 Dated: February 7, 2017 ______________________________________ YVONNE GONZALEZ ROGERS United States District Judge 6 7 8 9 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 2

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