Usrey v. Deyott et al

Filing 77

ORDER. Request for Excusable Neglect 75 and Request to Appoint New ADA aid 76 are DENIED. Signed by Judge Dana L. Christensen on 5/15/2014. Mailed to Usrey. (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION

FILED
MAY 15 2014
Clerk,

u.s. District I:ourt

CV 12-00092-H-DLC-mi~:o~1~t<·;,;

RICKY JOE USREY,
Plaintiff,
vs.

ORDER

DENISE DEYOTT and MIKE
FERRITER,
Defendants.

Plaintiff Ricky Usrey has filed a "Notice to Court: Request for Excusable
Neglect Clause" (Doc. 75) and "Notice and Declaration of Plaintiff, Notice to
Appoint New ADA-AlD." (Doc. 76.) To the extent these documents can be
construed as motions, they are denied.

I. REQUEST FOR EXCUSABLE NEGLECT CLAUSE

It is unclear what Mr. Usrey seeks in his Request for Excusable Neglect
Clause. He indicates that documents were due on May 1, 2014 and asks the Court
to "grant him the 'Excusable neglect' clause in this matter and allow all documents
to be filed in this cause of action." (Doc. 75 at 2.) The only current court ordered
deadline in this case is the June 2, 2014 deadline for the filing of a motion for
summary judgment or a proposed final pretrial order. (March 3,3014 Order, Doc.
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74 at 10.) To the extent Mr. Usrey is seeking an extension of a deadline for
responding to Defendants' discovery requests, that is an issue which must be
addressed with Defendants.
As there are no pending Court deadlines for the Court to "excuse," Mr.
Usrey's Request for Excusable Neglect Clause will be denied as moot.

II. NOTICE TO APPOINT NEW ADA-AID
Mr. Usrey's Notice to Appoint New ADA-Aid raises several issues. First,
Mr. Usrey discusses his current placement in the prison and that since he has been
moved to a different housing location, Mr. James Ball is not longer his appointed
aid. Mr. Usrey asks to the Court to appoint Mr. Jeffrey Lout as his aid. The
United States Supreme Court has cautioned the federal courts not to interfere with
the day-to-day operations of the prisons, a task which is best left to prison officials
who have particular experience in dealing with prisons and prisoners. Turner v.

Safley, 482 U.S. 78, 84-86, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987); Wright v.
Rushen, 642 F.2d 1129, 1132 (9th Cir. 1981) (courts should avoid enmeshing
themselves in minutiae of prison operations). The Court will not interfere in this
aspect of prison administration.
In the alternative, Mr. Usrey requests the appointment of counsel based
upon his illiteracy. No one, including incarcerated prisoners, has a constitutional
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right to be represented by appointed counsel when they bring a civil lawsuit under
42 U.S.C. § 1983. Randv. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997),

withdrawn on other grounds, 154 F.3d 952,962 (9th Cir. 1998). 28 U.S.C. § 1915
allows the Court to "request" counsel to represent a litigant who is proceeding in
forma pauperis, but only under "exceptional circumstances." 28 U.S.C. §
1915(e)(1) (formerly 28 U.S.C. § 1915(d)); Terrell v. Brewer, 935 F.2d 1015,
1017 (9th Cir. 1991).
"A finding of exceptional circumstances requires an evaluation of both 'the
likelihood of success on the merits and the ability of the petitioner to articulate his
claims pro se in light of the complexity of the legal issues involved.' Neither of
these factors is dispositive and both must be viewed together before reaching a
decision." Terrell, 935 F.2d at 1017 (citing Wilborn v. Escalderon, 789 F.2d
1328, 1331 (9th Cir. 1986) (citations omitted).
Mr. Usrey has demonstrated he is able to articulate his position with the
help of prison aids. He has not demonstrated exceptional circumstances that
would empower a court to request counsel to represent him in this action.
Secondly, Mr. Usrey believes that counsel for Defendants is still attempting
to work out a settlement agreement with Mr. Ball even though Mr. Ball is no
longer Mr. Usrey's aid. He asks that the Court to order counsel for Defendants to
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stop speaking with his witnesses outside his presence and that settlement not be
discussed outside his presence.
No settlement will be accepted by this Court without Mr. Usrey's consent
and signature, therefore, it is unnecessary to prohibit settlement discussions
outside of Mr. Usrey's presence. Any such discussions will have not impact on
this case. Further, nothing in the rules of procedure prohibit Defendants' counsel
from speaking to witnesses outside ofMr Usrey's presence.
Lastly, Mr. Usrey complains that counsel for Defendants failed to notify the
Court that he postponed Mr. Usrey's deposition. The parties do not need to and
should not notify the Court regarding discovery proceedings such as the
scheduling of depositions. Local Rule 26.2 prohibits the filings of notice of
depositions and other discovery documents. L.R.26.2(a). The Court will not
become involved in discovery issues unless and until the parties have conferred in
attempt to resolve the issue without Court intervention. L.R.26.3(c)(I)
IT IS ORDERED that Mr. Usrey's equest for Excusable Neglect (Doc. 75)
.76) are denied.

and Request to Appoint New ADA aid (
DATED this I

~day of May, 201
Dana L. Christensen, Chief Judge
United States District Court
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