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Bjorlin v. Crow

August 26, 2009



Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court are plaintiff's various motions.


In this case, plaintiff claims that defendant Crow denied him adequate medical treatment in violation of the Eighth Amendment. Plaintiff also claims that defendant Crow discriminated against him based on plaintiff's race in violation of the Equal Protection Clause of the Fourteenth Amendment. On May 18, 2009, the assigned district judge held a trial confirmation hearing, vacated the trial date in this case, and ordered defendant Crow to file a motion for summary judgment on or before July 15, 2009. The defendant has since filed a timely motion for summary judgment, which plaintiff has opposed. In due course, the court will issue findings and recommendations on defendant's motion for summary judgment.


Plaintiff has filed seven virtually identical motions for appointment of counsel. As the court has previously advised plaintiff, the United States Supreme Court has ruled that district courts lack authority to require counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

The test for exceptional circumstances requires the court to evaluate the plaintiff's likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); 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. In the present case, the court does not find the required exceptional circumstances.

Plaintiff is advised that this court does not hold litigants proceeding pro se to the same standards that it holds attorneys. However, plaintiff's repeated filing of virtually identical motions before the court has had an opportunity to rule on his first motion constitutes an abuse of the process. Plaintiff is strongly cautioned that such misconduct in the future may result in the issuance of sanctions, including a recommendation for dismissal of this action. See Chambers v. Nasco, 501 U.S. 32, 43-46 (1991).


Plaintiff has filed with the court copies of several of his discovery requests to defendant Crow, including his first set of interrogatories and his first set of requests for production of documents. Plaintiff is advised that, under the court's June 5, 2008 scheduling order, discovery closed in this matter on October 3, 2008. Defendant Crow is not obligated to respond to these discovery requests. Nor will the court entertain any motions to compel such discovery at a later date. Plaintiff is advised that further filing of discovery requests, except as required by rule of court, may also result in an order imposing sanctions.

Plaintiff has also filed what appears to be a request for a subpoena to obtain defendant Crow's personnel file. In addition, plaintiff previously filed a subpoena for defendant Crow's personnel file on a California Superior Court form. Under Rule 45(c)(1) of the Federal Rules of Civil Procedure, "A party . . . responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena." In addition, discovery may be limited if:

(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other sources that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action or (iii) the burden or expense of the proposed discovery outweighs its likely benefit. . . .

Fed. R. Civ. P. 26(b)(2)(C).

Here, plaintiff has not indicated how defendant Crow's personnel file is relevant to the claims in this action. Nor has plaintiff limited the scope or nature of his request. Finally, discovery in this matter was open for nearly two years. During that time, it does not appear that plaintiff made any effort to request production of defendant Crow's personnel file from defense counsel even though he had ample time to do so. Under these ...

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