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Gorton v. Todd

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 14, 2009

CHARLES ROBERT GORTON, PLAINTIFF,
v.
TODD. ET AL., DEFENDANTS.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

On August 21, 2009, plaintiff filed an objection and motion for sanctions. Plaintiff alleges that counsel for the U.C. Davis defendants served him with notice of a deposition. Plaintiff alleges that when he arrived at the deposition, counsel for the U.C. Davis defendants and Mr. Pass, counsel for the other defendants, were present.

In the pending motion, plaintiff objects to his deposition by Mr. Pass on grounds that it was not noticed. Plaintiff also seeks sanctions. Plaintiff may object to use of his deposition by Mr. Pass when it is introduced as evidence in this action. Until then, any objection and request for sanctions are not yet ripe. For that reason, plaintiff's objection and motion for sanctions are denied without prejudice.

Moreover, plaintiff's objection is frivolous. At a deposition, all parties present are entitled to ask questions. See Fed.R.Civ.P. 30(c)(1): examination proceeds as if at trial where, of course, all parties participate in the questioning.

Plaintiff has requested the appointment of counsel. 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 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). In the present case, the court does not find the required exceptional circumstances. Plaintiff's request for the appointment of counsel will therefore be denied.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's August 21, 2009, motion for sanctions (no. 29) is denied;

2. Plaintiff's August 27, 2009, motion for the appointment of counsel (no. 30) is denied.

20090914

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