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Calderon-Silva v. Evans

United States District Court, Ninth Circuit

May 10, 2013

MARCELINO CALDERON-SILVA, Plaintiff,
v.
M.S. EVANS, et al., Defendants.

ORDER

EDMUND F. BRENNAN, Magistrate Judge.

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. He requests that the court appoint counsel and that his deposition, noticed for May 14, 2013, be postponed until the court rules on his request for counsel.

District courts lack authority to require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney to voluntarily to represent such a plaintiff. See 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). When determining whether "exceptional circumstances" exist, the court must consider the likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Having considered those factors, the court finds there are no exceptional circumstances in this case.

Plaintiff's request to postpone his deposition must also be denied. See Dckt. No. 28 (stating "plaintiff is afraid because he may might be asked to say anything which could be later used against him").[1] Defendants have a right to defend against plaintiff's allegations in this lawsuit. Under Rule 30 of the Federal Rules of Civil Procedure, and pursuant to this court's scheduling order, defendants are entitled to take plaintiff's deposition. See Dckt. No. 19 at 1.

Accordingly, IT IS HEREBY ORDERED that plaintiff's requests for appointment of counsel and to postpone his deposition, Dckt. Nos. 28, 29, are denied. IT IS FURTHER ORDERED that defendants make available a copy of this order for plaintiff's review at the upcoming deposition.


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