United States District Court, S.D. California
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION FOR COUNSEL AND EXTENSION OF TIME [ECF
N. BLOCK, UNITED STATES MAGISTRATE JUDGE
23, 2018, plaintiff filed a motion to appoint attorney and
extension of time as to the discovery schedule for 60 days.
(ECF No. 58.)
is no absolute right to counsel in civil proceedings.”
Hedges v. Resolution Trust Corp. (In re Hedges), 32
F.3d 1360, 1363 (9th Cir. 1994) (citation omitted). Thus,
federal courts do not have the authority “to make
coercive appointments of counsel.” Mallard v.
United States District Court, 490 U.S. 296, 310 (1989);
see also United States v. $292, 888.04 in U.S.
Currency, 54 F.3d 564, 569 (9th Cir. 1995). Districts
courts have discretion, however, pursuant to 28 U.S.C. §
1915(e)(1), to “request” that an attorney
represent indigent civil litigants upon a showing of
exceptional circumstances. See Terrell v.
Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Burns
v. County of King, 883 F.2d 819, 823 (9th Cir. 1989).
“A finding of exceptional circumstances requires an
evaluation of both the ‘likelihood of success on the
merits and the ability of the plaintiff to articulate his
claims pro se in light of the complexity of the
legal issues involved.' Neither of these issues is
dispositive and both must be viewed together before reaching
a decision.'” Id. (quoting Wilborn v.
Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).
absence of counsel, however, the procedures employed by the
federal courts are highly protective of a pro se
litigant's rights. See Haines v. Kerner, 404
U.S. 519, 520 (1972) (holding pro se complaint to
less stringent standard) (per curiam). Where a plaintiff
appears pro se in a civil rights case, the court
must construe the pleadings liberally and afford the
plaintiff any benefit of the doubt. Karim-Panahi v. Los
Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir.
1988). The rule of liberal construction is
“particularly important in civil rights cases.”
Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.
case, plaintiff has failed to demonstrate extraordinary
circumstances. Plaintiff has sufficiently represented himself
to date. For example, on May 16, 2018, plaintiff discussed
with defense counsel in person the forward-looking and
backward-looking claims in his case as they relate to the
favorable determination doctrine in Heck v.
Humphrey, 512 U.S. 477 (1994), as analyzed in
Christopher v. Harbury, 536 U.S. 403
(2002). (See ECF No. 199-1 at 2, No.
3:14-cv-00590-JLS-JLB.) On May 18, 2018, defendant's
counsel received a five-page, single-spaced handwritten
letter from plaintiff further discussing the issues in that
case. (Id.) Moreover, plaintiff has recently been
designated a prisoner with disability placement impacted
vision (“DPV”). (See ECF No. 199-2 at 2,
No. 3:14-cv-00590-JLS-JLB.) As a DPV inmate, plaintiff is
allowed to access machinery in the law library that either
magnifies text or audibly reads the text to him, depending on
his preference; he will be provided a pocket magnifier if
checked out for cell use; and a skilled inmate worker will be
available to plaintiff on the yard to read text to him and
act as a scribe for written documents. (Id. at 3.)
Accordingly, the Court finds that the plaintiff has not shown
how his vision impairment would prevent him from sufficiently
prosecuting his lawsuit. At this stage of the proceedings,
the Court finds the interests of justice do not require the
appointment of counsel.
the Court hereby DENIES without prejudice plaintiff's
motion for appointment of counsel.
the Court recognizes the existence of the need for plaintiff
to have his vision impairment reexamined. During an April
2018 eye examination, plaintiff's eye chart test
indicated blurry vision, which could not be corrected with
lenses. (See ECF No. 199-1 at 2, No.
3:14-cv-00590-JLS-JLB.) Dr. Santos confirmed the findings of
the April 2018 eye appointment on May 7, 2018, but could no
reason for the blurred vision. (Id. at 2-3.) For
that reason, Dr. Santos requested that plaintiff be seen by a
ophthalmologist; although plaintiff's ophthalmologist
appointment was scheduled for May 22, 2018, there was a
concern that plaintiff might not be cleared for transport to
that appointment due to his crisis bed status. (Id.
at 3.) Therefore, the Court finds plaintiff's request
reasonable considering the circumstances and GRANTS
plaintiff's motion for a 60 day extension of time to the
deadlines currently set the Court's October 23, 2017
IT IS HEREBY ORDERED that:
fact discovery cutoff shall be continued from June 22, 2018
to August 24, 2018.
deadline to file dispositive pretrial motions shall be
continued from July 20, 2018 to September 21, 2018.
date scheduled to conduct the Mandatory Settlement Conference
shall be continued from October 5, 2018 to December 7,
2018. The deadline for parties to submit settlement
statements shall be continued from September 28, 2018 to
November 30, 2018.
deadline for counsel to comply with the pretrial disclosure
requirements of Fed. Civ. P. 26(a)(3) shall be continued from
October 19, 2018 to December 21, 2018.
deadline for counsel to meet and take the action required by
Local Rule 16.1(f)(4) shall be continued from October 26,
2018 to December 28, 2018.
deadline for defense counsel to provide plaintiff with the
proposed pretrial order for review and approval shall be