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Price v. Weisse

United States District Court, S.D. California

July 3, 2019

IMMANUEL PRICE, Plaintiff,
v.
J. WEISSE, Defendant.

         ORDER RE: SECOND MOTION FOR APPOINTMENT OF COUNSEL [DOC. NO. 67]; MOTION FOR EXTENSION OF TIME [TO RESPOND TO DISCOVERY REQUESTS] [DOC. NO. 68]; MOTION FOR SUBPOENAS [DOC. NO. 70] and MOTION FOR EXTENSION OF TIME TO FILE REPLY TO ANSWER [DOC. NO. 65]

          Hon Karen S. Crawford United States Magistrate Judge.

         Plaintiff Immanuel Price, who is currently incarcerated and proceeding pro se and in forma pauperis, has filed four motions that are currently pending before the Court. The Court addresses each of them in turn.

         I. Background

         Plaintiff seeks redress pursuant to 42 U.S.C. § 1983 from defendant J. Weise, who is a canine handler for the San Diego Police Department. [Doc. No. 50.] Plaintiff alleges defendant used unreasonable force during a search of plaintiff's residence in violation of his rights under the Fourth Amendment of the United States Constitution. [Id., at p. 3.] Plaintiff contends that due to defendant's unreasonable use of force, plaintiff sustained multiple dog-bite wounds from a San Diego Police Department canine that was under defendant's control [Id.] Plaintiff has sued defendant in his individual and official capacity. [Id., at p. 2.]

         II. Second Motion for Appointment of Counsel

         On April 23, 2019, plaintiff filed a Motion for Appointment of Counsel, in which he requests the Court appoint counsel to assist him with discovery. [Doc. No. 67, p. 3.]

         “There is no absolute right to counsel in civil proceedings.” Hedges v. Resolution Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994). District Courts have discretion, however, pursuant to 28 U.S.C § 1915(c)(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 making a decision.” Terrell, 935 F.2d at 1017 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).

         First, plaintiff's contention that “a lawyer is in a better position to retrieve discovery” does not constitute exceptional circumstances. The hardships associated with litigating plaintiff's case are shared by all incarcerated litigants lacking legal expertise.[1] There is no basis for the Court to find that plaintiff lacks the ability to articulate and litigate his claims. He has filed several documents with the Court, including the four Motions that are the subject of this Order, that are organized and present his arguments with reasonable efficiency and clarity. [See also e.g., Doc. No. 1, Complaint & Doc. No. 50, First Amended Complaint]. Second, plaintiff has not addressed the likelihood of success on the merits. Nor is a likelihood of success evident from the face of the First Amended Complaint. [Doc. No. 50]. Consequently, plaintiff's Motion for Appointment of Counsel is DENIED without prejudice.

         III. Motion for Extension of Time to Respond to Discovery

         Plaintiff has also filed a Motion for Extension of Time, in which he requests the Court extend the deadline for him to respond to Interrogatories and Requests for Production of Documents that were propounded by defendant. [Doc. No. 68.] Plaintiff asks that his deadline be extended until after the Court rules on his Second Motion for Appointment of Counsel, discussed supra. Plaintiff's Motion for Extension of Time is GRANTED. Plaintiff shall serve full and complete responses to the Interrogatories and Requests for Production of Documents no later than July 19, 2019.

         IV. Motion for Fed.R.Civ.P. Rule 45 Subpoenas

         Plaintiff's third Motion involves a request that the Court send him two blank subpoenas. [Doc. No. 70.] Plaintiff intends to use one of the blank subpoenas to seek medical records relating to the treatment of his dog bite wounds, while he was incarcerated at the San Diego County Jail. [Id.] The other subpoena he intends to use to request a copy of the San Diego Police Department Canine Unit Operations Manual. [Id. at pp. 1-2.]

         Plaintiff's Motion for Subpoenas is GRANTED. The Court directs the Clerk of Court to mail to plaintiff, with this Order, two subpoena duces tecum form, signed but otherwise blank (AO-88B “Subpoena to Produce Documents, Information or Objects”), which should be completed by plaintiff. When completing these subpoenas, plaintiff is required to specify which documents he is seeking. The request must be specific enough to determine what plaintiff seeks. Plaintiff's in forma pauperis status allows him assistance in the service of a completed records subpoena by the United States Marshal. See 28 U.S.C. ยง 1915(d). Within twenty-one (21) days of this Order, plaintiff shall complete the subpoena duces tecum forms and return them, along with a copy of this Order to the United States Marshal for service. The ...


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