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Zamaro v. Moonga

December 21, 2009

SAMMY ZAMARO, PLAINTIFF,
v.
G. MOONGA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER STRIKING REPLY TO ANSWER, AND DENYING MOTIONS (Docs. 18, 23, and 24)

Order on Miscellaneous Motions

I. Introduction

Plaintiff Sammy Zamaro, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on February 12, 2009. The action is proceeding against Defendants Moonga, Akanno, Bedi, and Martinez for acting with deliberate indifference to Plaintiff's serious medical needs, in violation of the Eighth Amendment, while Plaintiff was housed at Kern Valley State Prison in Delano, California.

On November 2, 2009, Defendants filed an answer, and on November 3, 2009, the Court issued a scheduling order. On December 2, 2009, Plaintiff filed a motion seeking clarification of his responsibility with respect to responding to the answer and either the issuance of an informational order explaining the scheduling order or the appointment of counsel. Defendants opposed the motion on December 3, 2009, and it has been deemed submitted. Local Rule 230(l).

II. Reply to Answer

Neither the Federal Rules of Civil Procedure nor the Local Rules provide for the right to file a reply to an answer, and the Court did not order that a reply be filed. Fed. R. Civ. P. 7(a)(7). Therefore, the reply to the answer filed by Plaintiff on December 17, 2009, will be stricken from the record.

III. Motion for Clarification

With respect to Plaintiff's request for an additional informational order, the Court cannot give Plaintiff legal advice, which includes providing Plaintiff with further details on how to conduct discovery. The First Informational Order; the Second Informational Order, Motion to Dismiss Notice, and Summary Judgment Notice; and the Discovery and Scheduling Order, all of which have been issued in this case, comprise the information provided to Plaintiff regarding applicable rules and requirements. The Court cannot provide further information, and notes that the orders are already written in plain language intended for non-attorneys.

IV. Motion for Counsel

Regarding the appointment of counsel, Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an attorney to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain exceptional circumstances the Court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.

Without a reasonable method of securing and compensating counsel, the Court will seek volunteer counsel only in the most serious and exceptional cases. In determining whether "exceptional circumstances exist, the district court must evaluate both the likelihood of success of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues involved." Id. (internal quotation marks and citations omitted).

In the present case, the Court does not find the required exceptional circumstances. Even if it is assumed that Plaintiff is not well versed in the law and that he has made serious allegations which, if proved, would entitle him to relief, his case is not exceptional. The Court is faced with similar cases almost daily. Further, at this early stage in the proceedings, the Court cannot make a determination that Plaintiff is likely to succeed on the merits, and based on a review of the record in this case, the ...


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