Craig v. Davis et al

Filing 38

ORDER by Judge Phyllis J. Hamilton denying as moot 31 MOTION That This Be the Last Extension Given to V. Bri; denying in part 36 Motion. The motion for Appointment of Counsel and Discovery is denied. The request for Extension of Time to File Response/Reply is granted. (Certificate of Service attached) (kcS, COURT STAFF) (Filed on 6/5/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ROBERT FRED CRAIG,
Plaintiff,

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Re: Dkt. Nos. 31, 36
V. BRIM,
Defendant.

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United States District Court
Northern District of California

ORDER

v.

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Case No. 15-cv-03664-PJH

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Plaintiff, a state prisoner, proceeds with a pro se civil rights complaint under 42

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U.S.C. § 1983. Defendant filed a motion for summary judgment on May 10, 2017.

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Plaintiff has filed a motion seeking an extension, the appointment of counsel and

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discovery.

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There is no constitutional right to counsel in a civil case, Lassiter v. Dep't of Social

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Services, 452 U.S. 18, 25 (1981), and although district courts may "request" that counsel

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represent a litigant who is proceeding in forma pauperis, as plaintiff is here, see 28

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U.S.C. § 1915(e)(1), that does not give the courts the power to make "coercive

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appointments of counsel." Mallard v. United States Dist. Court, 490 U.S. 296, 310

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(1989).

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The Ninth Circuit has held that a district court may ask counsel to represent an

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indigent litigant only in "exceptional circumstances," the determination of which requires

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an evaluation of both (1) the likelihood of success on the merits and (2) the ability of the

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plaintiff to articulate his claims pro se in light of the complexity of the legal issues

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involved. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). Plaintiff has presented

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his claims adequately, and the issues are not complex. The motion to appoint counsel is

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denied.

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Plaintiff also requests discovery from defendant. Plaintiff is informed that the court

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generally is not involved in the discovery process and only becomes involved when there

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is a dispute between the parties about discovery responses. Discovery requests and

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responses normally are exchanged between the parties without any copy sent to the

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court. See Fed. R. Civ. P. 5(d) (listing discovery requests and responses that “must not”

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be filed with the court until they are used in the proceeding or the court orders otherwise).

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Only when the parties have a discovery dispute that they cannot resolve among

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themselves should the parties even consider asking the court to intervene in the
discovery process. The court does not have enough time or resources to oversee all

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United States District Court
Northern District of California

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discovery, and therefore requires that the parties present to it only their very specific

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disagreements. To promote the goal of addressing only very specific disagreements

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(rather than becoming an overseer of all discovery), the court requires that the parties

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meet and confer to try to resolve their disagreements before seeking court intervention.

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See Fed. R. Civ. P. 37(a); N.D. Cal. Local Rule 37. Where, as here, one of the parties is

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a prisoner, the Court does not require in-person meetings and instead allows the prisoner

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and defense counsel to meet and confer by telephone or exchange of letters. Although

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the format of the meet-and-confer process changes, the substance of the rule remains

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the same: the parties must engage in a good faith effort to meet and confer before

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seeking court intervention in any discovery dispute.

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It does not appear that plaintiff has sought the discovery from defendant. Plaintiff

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should present a specific discovery request to defendant and not the court. Plaintiff’s

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motion for discovery is denied.

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CONCLUSION
1. Plaintiff’s motion that no further extensions be provided for defendant to file a
motion for summary judgment (Docket No. 31) is DENIED as moot.
2. Plaintiff’s motion (Docket No. 36) is DENIED IN PART. The motion for the
appointment of counsel and discovery is denied. The request for an extension is granted.
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Pla
aintiff may have until July 10, 201 to file a oppositio to summary judgme
h
J
17,
an
on
ent. Failure
e

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to file an oppo
osition may result in dismissal of this action.
y
.

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IT IS SO ORDER
S
RED.
Da
ated: June 5, 2017
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PH
HYLLIS J. H
HAMILTON
N
Un
nited States District Ju
s
udge

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\\can
ndoak.cand.circ9
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2015\2015_03664
4_Craig_v_Brim_
_(PSP)\15-cv-03
3664-PJH-ord4.d
docx

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United States District Court
Northern District of California

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UNITED STATES D
D
DISTRICT C
COURT

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NORTHER DISTRIC OF CALI
RN
CT
IFORNIA

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ROBERT FRE CRAIG,
ED
,

Case No. 1
15-cv-03664
4-PJH

Plaintiff,
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v.

CERTIFIC
CATE OF S
SERVICE

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V. BRIM,
V
.
Defendant.

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United States District Court
Northern District of California

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I, the un
ndersigned, hereby certify that I am an employe in the Offi of the Clerk, U.S.
ee
ice
Dis
strict Court, Northern Di
istrict of Cal
lifornia.

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That on June 5, 201 I SERVE a true and correct cop
n
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ED
d
py(ies) of the attached, b placing
by
said copy(ies) in a postage paid envelo addressed to the pers
i
ope
d
son(s) herein
nafter listed, by
dep
positing said envelope in the U.S. Mail, or by pla
d
n
M
acing said co
opy(ies) into an inter-off delivery
o
ffice
y
rec
ceptacle loca in the Cl
ated
lerk's office.
.

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Robert Fred Cr ID: AS6
raig
6563
San Quentin, CA 94974
n
C

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Da
ated: June 5, 2017

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usan Y. Soon
ng
Su
Cl
lerk, United States Distr Court
d
rict

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By
y:_________
___________
_______
K
Kelly Collins, Deputy Cle to the
,
erk
H
Honorable PH
HYLLIS J. H
HAMILTON
N
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