United States District Court, E.D. California
(1) DENYING PLAINTIFF'S MAY 5, 2017, MOTION FOR
PERMISSION TO PROCEED WITH DISCOVERY; (2) DENYING
PLAINTIFF'S MAY 5 2017, MOTION TO APPOINT COUNSEL; (3)
DENYING PLAINTIFF'S MAY 25, 2017, MOTION FOR COURT ORDER;
AND (4) DENYING PLAINTIFF'S MAY 30, 2017, MOTION FOR
PERMISSION TO CONDUCT DISCOVERY (ECF NOS. 21, 22, 28,
MICHAEL J. SENG, UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and in forma pauperis
in this civil rights action pursuant to 42 U.S.C. §
1983. This case proceeds on Plaintiff's First Amended
Complaint against Defendants E. Clark, O. Beregovskaya, P.
Lenoir, and C. McCabe on an Eighth Amendment medical
indifference claim; against R. Vogel on an Eighth Amendment
excessive force claim; and against E. Clark, O. Beregovskaya,
P. Lenoir, C. McCabe, and R. Vogel on a Fourteenth Amendment
equal protection claim. (ECF No. 14.) Defendants filed an
answer on May 19, 2017, and a Discovery and Scheduling Order
issued on May 22, 2017. (ECF Nos. 25, 27.)
before the Court are a number of motions filed by Plaintiff:
(1) a May 5, 2017, motion to proceed with discovery (ECF No.
21); (2) a May 5, 2017, motion to appoint counsel (ECF No.
22); (3) a May 25, 2017, motion directing defendants to file
an answer (ECF No. 28); and (4) a May 30, 2017, motion for
permission to conduct discovery prior to Defendants'
answer (ECF No. 33).
May 5, 2017, Discovery Motion
May 5, 2017, motion, Plaintiff moves the Court to conduct
“discovery to contest and/or respond to any likely
challenges defendants may make to dismiss. The above-entitled
cause.” Defendants have not filed a motion to dismiss;
instead, they filed an answer. This motion will therefore be
May 5, 2017, Motion to Appoint Counsel
May 5, 2017, Plaintiff filed a motion to appoint counsel on
the grounds that he is indigent, his incarceration affects
his ability to litigate this action, the issues are complex,
and only an attorney could properly prepare this case for
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). 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. However,
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).
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. This 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 Court does not find
that plaintiff cannot adequately articulate his claims.
Id. This motion will also be denied.
May 25, 2017, Motion to Direct Defendants to Answer
25, 2017, Plaintiff filed a request for an order directing
Defendants to file an answer. Since Defendants filed an
answer the week before on May 19, 2017, this motion will be
May 30, 2017, Motion for Permission to Conduct
May 30, 2017, motion for permission to conduct discovery,
Plaintiff seeks leave to conduct discovery prior to the
filing of Defendants' answer. Again, since Defendants
have now already answered and a Discovery ...