Holmes v. Estock et al

Filing 20

ORDER Granting in Part and Denying in Part 18 Plaintiff's Motion for Extension of Time and for the Appointment of Counsel. Plaintiff's request for a continuance is granted as follows: Rule 26 Supplemental Disclosures are due 1/19/2018. Ex pert Discovery must be completed on or before 2/16/2018. Any Pre-Trial Motions must be filed on or before 3/19/2018. A Mandatory Settlement Conference is set for 6/7/2018 at 1:30 PM before Magistrate Judge Barbara Lynn Major, with Confidential Statements due 5/29/2018. The Court denies without prejudice Plaintiff's request for appointment of counsel. Signed by Magistrate Judge Barbara Lynn Major on 12/1/2017. (All non-registered users served via U.S. Mail Service)(rmc)

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1 2 UNITED STATES DISTRICT COURT 3 SOUTHERN DISTRICT OF CALIFORNIA 4 5 Case No.: 16cv2458-MMA(BLM) CHARLES HOLMES, ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR EXTENSION OF TIME AND FOR THE APPOINTMENT OF COUNSEL Plaintiff, 6 7 v. 8 DR. ESTOCK, DR. BAL, S. CHAIKEN, C. REGULES, AND DOES 1-3, 9 [ECF No. 18] Defendants. 10 11 12 On November 15, 2017, Plaintiff filed a “REQ. FOR EXTENSION OF TIME TO FILE EXPERT 13 WITNESS REBUTTAL” that was accepted by the Court on discrepancy on November 27, 2017. 14 See ECF Nos. 17-18. 15 supplemental disclosures regarding contradictory or rebuttal evidence by sixty days. Id. at 2. 16 In support, Plaintiff states that he is restricted in what he can do due to the fact that he is pro 17 se and incarcerated. Id. at 1. Plaintiff notes that this is his first request for an extension of 18 time. Id. In further support, Plaintiff’s expert, Dr. Dudley Seth Danoff, submitted a letter to the 19 Court stating that he needs an additional thirty to forty five days to complete his report and that 20 he has not yet received the medical opinion provided to Defendants so that he may provide any 21 necessary rebuttal. See ECF No. 19. Plaintiff seeks to continue the November 17, 2017 deadline for 22 Good cause appearing, Plaintiff’s request for a continuance is GRANTED as follows: 23 Event Current Date Continued Date Rule 26 Supplemental Disclosures November 17, 2017 January 19, 2018 Completion Expert Disc. December 22, 2017 February 16, 2018 24 25 26 27 28 1 16cv2458-MMA(BLM) 1 Pre-Trial Mtn Filing Cutoff January 22, 2018 March 19, 2018 Mandatory Settlement Conference April 9, 2018 at 9:30 a.m. June 7, 2018 at 1:30 p.m. 5 Confidential Statements March 30, 2018 May 29, 2018 6 Motions in Limine April 23, 2018 VACATED1 Oppositions to Motions In limine May 7, 2018 VACATED Memo of Contentions Of Fact and Law April 23, 2018 VACATED Compliance with PreTrial Disclosure Reqs. April 23, 2018 VACATED April 30, 2018 VACATED 14 Rule 16.l(f)(4) Narrowing Of Triable Issues Mtg. 15 Produce Pre-Trial Order May 7, 2018 VACATED Proposed Final Pretrial Conference. Order Served/Lodged June 8, 2018 VACATED Final Pretrial Conf. May 21, 2018 at 3:00 p.m. VACATED 21 Trial June 19, 2018 VACATED 22 Proposed Jury Instructions June 14, 2018 VACATED 2 3 4 7 8 9 10 11 12 13 16 17 18 19 20 23 24 25 26 27 28                                                         If appropriate, following the filing of an order ruling on a motion for summary judgment or other dispositive pretrial motion, or in the event no such motion is filed, Judge Anello will issue a pretrial scheduling order setting a pretrial conference, trial date, and all related pretrial deadlines. The parties must review and be familiar with Judge Anello’s Civil Chambers Rules, which provide additional information regarding pretrial scheduling. 1 2 16cv2458-MMA(BLM) 1 2 All other requirements and guidelines remain as previously set. See ECF No. 9. In addition to the continuance, Plaintiff requests that the Court appoint counsel to represent 3 him “due to the complexity of the medical complaint at issue.” ECF No. 18 at 1-2. The 4 Constitution provides no right to appointment of counsel in a civil case unless an indigent litigant 5 may lose his physical liberty if he loses the litigation. Lassiter v. Dep’t of Soc. Servs., 452 U.S. 6 18, 25 (1981). However, under 28 U.S.C. § 1915(e)(1), courts are granted discretion to appoint 7 counsel for indigent persons under “exceptional circumstances.” Agyeman v. Corr. Corp. of Am., 8 390 F.3d 1101, 1103 (9th Cir. 2004). A finding of exceptional circumstances demands at least 9 “an evaluation of the likelihood of the plaintiff’s success on the merits and an evaluation of the 10 plaintiff’s ability to articulate his claims ‘in light of the complexity of the legal issues involved.’” 11 Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 12 Thus far, Plaintiff has drafted and submitted pleadings and motions without the assistance 13 of counsel. See Docket. In addition to the instant motion, he has submitted a complaint (ECF 14 No. 1), a motion to proceed in forma pauperis (ECF No. 2), and a motion for preliminary 15 injunction (ECF No. 12). From the Court’s review of these documents, it is clear that Plaintiff is 16 able to articulate the claims of his case. The Court previously denied Plaintiff’s request for 17 counsel [see ECF No. 16] and Plaintiff’s current request does not provide any new facts justifying 18 such an extraordinary remedy. ECF No. 18. Further, Plaintiff does not demonstrate a likelihood 19 of success on the merits such that his case should be classified as an “exceptional 20 circumstance[].” Agyeman, 390 F.3d at 1103; see also Wilborn, 789 F.2d at 1331. Because 21 Plaintiff has not alleged the requisite “exceptional circumstances” at this time, the Court DENIES 22 without prejudice Plaintiff’s request for appointment of counsel. 23 IT IS SO ORDERED. 24 25 Dated: 12/1/2017 26 27 28 3 16cv2458-MMA(BLM)

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