Filed: Jan. 11, 2015
Latest Update: Jan. 11, 2015
Summary: ORDER ALLISON CLAIRE, Magistrate Judge. Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action under 42 U.S.C. 1983. Defendant has not consented to the jurisdiction of the magistrate judge. Pending before the court are (1) plaintiff's motion for an extension of the discovery deadline, (2) defendant's motion for an extension of time to file an answer, and (3) plaintiff's motion for appointment of counsel. 1. Extension of Discovery Deadline The cou
Summary: ORDER ALLISON CLAIRE, Magistrate Judge. Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action under 42 U.S.C. 1983. Defendant has not consented to the jurisdiction of the magistrate judge. Pending before the court are (1) plaintiff's motion for an extension of the discovery deadline, (2) defendant's motion for an extension of time to file an answer, and (3) plaintiff's motion for appointment of counsel. 1. Extension of Discovery Deadline The cour..
More
ORDER
ALLISON CLAIRE, Magistrate Judge.
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action under 42 U.S.C. § 1983. Defendant has not consented to the jurisdiction of the magistrate judge. Pending before the court are (1) plaintiff's motion for an extension of the discovery deadline, (2) defendant's motion for an extension of time to file an answer, and (3) plaintiff's motion for appointment of counsel.
1. Extension of Discovery Deadline
The court's Discovery and Scheduling Order set January 20, 2015 as the deadline for conducting discovery and the filing of discovery motions. ECF No. 20. Plaintiff asks for an additional 60 or 90 days to conduct discovery. ECF No. 31. Defendant has filed a Statement of Non-Opposition. ECF No. 33. The discovery deadline will be extended by 90 days.
2. Extension of Time To Answer
Plaintiff's Second Amended Complaint was served on defendant Swann on December 4, 2014. See ECF No. 32 ¶ 6. On December 17, 2014, defendant timely requested a 30-day extension of time to file an answer. ECF No. 32. On December 22, 2015, defendant filed his answer, having missed the 14-day period allotted for responding to an amended pleading. See ECF No. 34; Fed. R. Civ. P. 15(a)(3). Plaintiff has not filed an opposition to this motion. The motion for an extension of time will therefore be granted, and the answer will be deemed to be timely filed.
3. Appointment of Counsel
District courts may not require counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). However, where willing counsel is available, the district court "may request an attorney to represent any person unable to afford counsel." 28 U.S.C. § 1915(e)(1); Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004), cert. denied, 545 U.S. 1128 (2005).
The district court may appoint such counsel where "exceptional circumstances" exist. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009), cert. denied, 559 U.S. 906 (2010) (citing Agyeman, 390 F.3d at 1103). In determining whether or not exceptional circumstances exist, "a court must consider `the likelihood of success on the merits as well as the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved.'" Palmer, 560 F.3d at 970 (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). Circumstances common to most prisoners, such as lack of legal education and limited law library access, do not establish exceptional circumstances that would warrant a request for voluntary assistance of counsel. See, e.g., Guess v. Lopez, 2014 WL 1883875 at *5 (E.D. Cal. 2014) (Claire, M.J.). The court does not find exceptional circumstances in this case, at this time.
Accordingly, IT IS HEREBY ORDERED that
1. Plaintiff's motion for an extension of the discovery deadline (ECF No. 31), is GRANTED. Paragraphs 6 and 7 of the court's Discovery and Scheduling Order (ECF No. 20 at 5) are AMENDED to read:
6. The parties may conduct discovery until April 20, 2015. Any motions necessary to compel discovery shall be filed by that date. All requests for discovery pursuant to Fed. R. Civ. P. 31, 33, 34 or 36 shall be served not later than sixty days prior to that date (February 19, 2015).
7. All pretrial motions, except motions to compel discovery, shall be filed on or before July 20, 2015. Motions shall be briefed in accordance with paragraph 8 of this court's order filed May 28, 2014 (ECF No. 17).
2. Defendant's timely motion for an extension of time to answer (ECF No. 32), is GRANTED nunc pro tunc, and his Answer, filed December 22, 2014 (ECF No. 34), is deemed to be timely filed.
3. Plaintiff's motion for appointment of counsel (ECF No. 35), is DENIED without prejudice.