Filed: Feb. 22, 2012
Latest Update: Feb. 22, 2012
Summary: ORDER CINDY K. JORGENSON, District Judge. Pending before this Court is Plaintiff's Notice of Motion and Motion for Continuance to Seek Depositions and Affidavit in Support Under Fed. R. Civ. P. 56(f) [Doc. 49] and Notice of Motion and Motion for Appointment of Counsel and Affidavit in Support Under 28 U.S.C. 1915(e)(1) [Doc. 50]. I. MOTION FOR DEPOSITIONS Plaintiff seeks additional time to obtain deposition testimony of prison officials pursuant to Rule 56(d), Federal Rules of Civil Proced
Summary: ORDER CINDY K. JORGENSON, District Judge. Pending before this Court is Plaintiff's Notice of Motion and Motion for Continuance to Seek Depositions and Affidavit in Support Under Fed. R. Civ. P. 56(f) [Doc. 49] and Notice of Motion and Motion for Appointment of Counsel and Affidavit in Support Under 28 U.S.C. 1915(e)(1) [Doc. 50]. I. MOTION FOR DEPOSITIONS Plaintiff seeks additional time to obtain deposition testimony of prison officials pursuant to Rule 56(d), Federal Rules of Civil Procedu..
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ORDER
CINDY K. JORGENSON, District Judge.
Pending before this Court is Plaintiff's Notice of Motion and Motion for Continuance to Seek Depositions and Affidavit in Support Under Fed. R. Civ. P. 56(f) [Doc. 49] and Notice of Motion and Motion for Appointment of Counsel and Affidavit in Support Under 28 U.S.C. § 1915(e)(1) [Doc. 50].
I. MOTION FOR DEPOSITIONS
Plaintiff seeks additional time to obtain deposition testimony of prison officials pursuant to Rule 56(d), Federal Rules of Civil Procedure.1 This Court's December 22, 2011 Order states in relevant part:
The Court shall extend discovery in this matter for the limited purpose of allowing Plaintiff to complete any depositions that he deems necessary, consistent with this Order. As such, Plaintiff will be given an additional sixty (60) days from the date of this Order to complete depositions in this matter.
Order [Doc. 48] 4:18-21. Plaintiff has failed to offer any reason why additional time is required. Indeed, it would appear that Plaintiff did not even read this Court's previous Order.2 As such, Plaintiff's Notice of Motion and Motion for Continuance to Seek Depositions and Affidavit in Support Under Fed. R. Civ. P. 56(f) [Doc. 49] is denied. Plaintiff shall have ten (10) days from the date of this Order to submit his opposition to Defendants' Motion for Summary Judgment [Doc. 46].3
II. APPOINTMENT OF COUNSEL
Plaintiff again seeks appointment of counsel [Doc. 50]. As this Court has previously stated, appointment of counsel under 28 U.S.C. § 1915(e)(1) is required only when "exceptional circumstances" are present. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A court must consider both the likelihood of success on the merits and the ability of the petitioner to articulate his claims pro se given the complexity of his case. Id. Neither factor is dispositive, and both must be viewed together before a finding of exceptional circumstances can be made. Id.
Plaintiff cites his inability to bear the costs of deposition expenses as grounds requiring appointment of counsel. Plaintiff had other discovery tools at his disposal, such as written interrogatories or requests for admission, but failed to use them. Moreover, there are only two Defendants remaining in this cause of action, and given potentially qualified immunity defenses, Plaintiff's likelihood of success on the merits is underwhelming. There is no evidence before this Court to suggest the presence of "exceptional circumstances" warranting appointment of counsel. As such, the Court will not appoint counsel at this time. Plaintiff's Notice of Motion and Motion for Appointment of Counsel and Affidavit in Support Under 28 U.S.C. § 1915(e)(1) [Doc. 50] is denied without prejudice.
Accordingly, IT IS HEREBY ORDERED that:
1) Plaintiff's Notice of Motion and Motion for Continuance to Seek Depositions and Affidavit in Support Under Fed. R. Civ. P. 56(f) [Doc. 49] is DENIED;
2) Plaintiff's Notice of Motion and Motion for Appointment of Counsel and Affidavit in Support Under 28 U.S.C. § 1915(e)(1) [Doc. 50] is DENIED WITHOUT PREJUDICE; and
3) Plaintiff shall submit his response to Defendants' Motion for Summary Judgment [Doc. 46] within ten (10) days of the date of this Order.
