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Baker v. Walker

March 31, 2010

THESOLONIA BAKER, PLAINTIFF,
v.
J. WALKER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Peggy A. Leen United States Magistrate Judge

ORDER

(Mtn for Counsel - Dkt. #24) ) (Mtn to Compel - Dkt. #25)

This matter is before the court on Plaintiff's Motion to Appoint Counsel (Dkt. #24) and Plaintiff's Motion to Compel (Dkt. #25). Defendants Lytle, Bishop, and Parker filed an Opposition (Dkt. #29) to the Motion to Compel. Plaintiff filed a Reply (Dkt. #30). The court has considered the motions, the opposition, and the reply.

Plaintiff brought this civil rights action under 28 U.S.C. § 1983, alleging that he was retaliated against by various prison officials. The court screened the Amended Complaint (Dkt. #7) and entered an Order (Dkt. #10) allowing Plaintiff to proceed with claims against R. Bishop, D. Lytle, and G. Parker (together, the "Defendants") for retaliation against Plaintiff in violation of his First Amendment rights. See Order, Dkt. #10 at 2:7-9. Specifically, Plaintiff alleges that Defendants have retaliated against him by issuing erroneous rules violation charges, improperly searching his cell, confiscating his property, deeming Plaintiff a gang member, and obstructing Plaintiff's efforts relating to his appeal regarding prison officials' attempt to incite African-American inmates. See Order at 4:1-5, Dkt. #5. Plaintiff propounded various discovery requests, including requests for production of documents and interrogatories on Defendants.

I. Motion to Appoint Counsel (Dkt. #24).

Plaintiff's Motion to Appoint Counsel (Dkt. #24) asserts he is financially unable to retain counsel, that the issues presented by this case are complex and difficult for him to understand, and that his imprisonment will hinder his ability to prosecute this case. Plaintiff also asserts the prison limits his access to the law library, and he has no legal experience and very little knowledge of the law.

In civil cases the district court may only appoint counsel to litigants proceeding in forma pauperis pursuant to 28 U.S.C. § 1915(e)(1). That statute does not authorize courts to require counsel to represent such litigants, but only to request such representation on a pro bono basis. See Mallard v. United States Dist. Ct., 490 U.S. 296, 304-05 (1989). The appointment of counsel pursuant to section 1915(e)(1) is limited to cases presenting exceptional circumstances. See Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980) (per curiam). Appointment of counsel is not a matter of right. See Ivey v. Board of Regents, 673 F.2d 266 (9th Cir. 1982). Although the court appreciates that almost every inmate would benefit from the appointment of counsel, Plaintiff has not established the existence of exceptional circumstances which warrant appointment of counsel.

II. Motion to Compel (Dkt. #25).

Plaintiff seeks to compel further responses to requests for production of documents which were served on and responded to by the Defendants. He also seeks to take a deposition pursuant to Rule 45 of the Federal Rules of Civil Procedure.

As a general matter, under Rule 26(b)(1) of the Federal Rules of Civil Procedure, "[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense." Id. Furthermore, "[f]or discovery purposes, relevance means only that the materials sought are reasonably calculated to lead to the discovery of admissible evidence." Oppenheimer Fund v. Sanders, 437 U.S. 340, 351 (1978). "Under the Federal Rules, the scope of discovery is broad[,] and discovery should be allowed unless the information sought has no conceivable bearing on the case." Jackson v. Montgomery Ward & Co., 173 F.R.D. 524, 528 (D. Nev. 1997). Even if discovery is relevant, however, the court must limit discovery if it determines that:

(a) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from another more convenient, less burdensome source;

(b) the party seeking discovery had ample opportunity to obtain the information through discovery; or

(c) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the case, and the importance of the discovery in resolving the issues. See Fed.R.Civ.P. 26(b). The court will address each of the disputed requests and objections in turn.

Defendants responded to request number 1, 2, 4, 5, 8, 16, indicating they do not have possession, custody, or control of documents responsive to these requests. A party who is not in care, custody, or control of requested documents may not be compelled to produce such ...


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