United States District Court, S.D. California
(1) GRANTING DEFENDANTS' EX PARTE MOTION FOR EXTENSION ON
DEADLINE TO FILE REPLY TO MOTION FOR SUMMARY JUDGMENT AND
MOTION TO VACATE SCHEDULING ORDER; (2) GRANTING IN PART AND
DENYING IN PART PLAINTIFF'S MOTION FOR EXTENSION TO FILE
MSJ OPPOSITION, APPOINTMENT OF COUNSEL, OR IN THE
ALTERNATIVE, ORDER DIRECTING DEFENDANT TO PROVIDE PLAINTIFF
WITH HIS LEGAL PROPERTY [ECF NOS. 139, 140]
Nita L. Stormes United States Magistrate Judge
the Court are two related motions: (1) Defendants' ex
parte motion to extend their time to file a reply to
their pending motion for summary judgment (“MSJ”)
and to vacate the mandatory settlement conference date and
other pending pretrial deadlines and (2) Plaintiff's
ex parte motion for a 60 day extension to file his
opposition to Defendants' MSJ and for appointment of
counsel, or in the alternative, for an order directing
Defendants to provide him with his legal property. ECF Nos.
139, 140. The Court will address each in turn.
Court will first address Plaintiff's motion. He requests
a 60-day extension because he is no longer in possession of
his legal papers that he claims he needs to oppose
Defendants' motion. ECF No. 140. Plaintiff states that he
was recently sentenced in his criminal case, and had all his
legal papers with him at that time. Id. at 2.
However, all his papers were confiscated and despite his
attempts to get them back, he has not been able to do so at
the time of his motion. Id. He claims that
Defendant, County of San Diego, has his legal property
because he was in their custody when he was sentenced.
Id. He requests that the Court grant him a 60-day
continuance to oppose the MSJ and to be appointed counsel to
represent him. Id. at 3. Alternatively, he requests
that the Court order Defendant to return his property to him.
respond that they do not oppose the extension request. ECF
No. 141 at 1. However, they do oppose the request for
counsel. Defendants state, with supporting evidence, that
Plaintiff did come to his sentencing hearing with a red
suitcase and plastic container he claimed contained his legal
papers. Id. at 2. These were considered bulk
materials and thus, he was not allowed to bring them into
jail per Sheriff's Department policy. Id.;
id. Exs. A, B. Per the incident report, however, a
Sergeant told Plaintiff that he could have a family member
pick the materials up and Plaintiff provided the contact
information of both his mother and his wife. Id. Ex
A. The incident report stated that his mother was called and
she picked his belongings at the Hall of Justice.
Id. Defendants submit a form titled
“Safekeeping Property Notification and Release Form,
” which appears to have Plaintiff's mother's
signature at the bottom, along with a notation “mother
picked up.” Id. Ex. C. Defendants also submit
a security camera capture from September 19, 2019 of a woman
exiting the lobby at the Hall of Justice, with a suitcase and
bin materials, they claim to be Plaintiff's mother.
Id. Ex D. Thus, Defendants argue that
Plaintiff's mother has his legal property now, presumably
can get it to him, and there are no exceptional circumstances
requiring appointment of counsel. Id. at 3.
light of the evidence presented on this issue, the Court
finds that the most appropriate resolution is for Plaintiff
to obtain his legal materials from his mother directly to
oppose the summary judgment motion. Plaintiff's motion
makes no mention of his legal materials being with his
mother, and does not identify any hardships with obtaining
them from her now that they are in her possession. The Court
will GRANT Plaintiff a 60-day extension to
file his opposition to Defendants' motion for summary
judgment. Plaintiff shall file his opposition to
Defendants' motion by no later than December
6, 2019. Defendants shall file their reply by
no later than December 20, 2019.
Court DENIES the request for appointment of
counsel at this time. Courts have discretion to request that
an attorney represent indigent civil litigants only upon a
showing of “exceptional circumstances.” 28 U.S.C.
§ 1915(e)(1); Agyeman v. Corrs. Corp. of Am.,
390 F.3d 1101, 1103 (9th Cir. 2004). “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.”
Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.
1991), quoting Wilborn v. Escalderon, 789 F.2d 1328,
1331 (9th Cir. 1986). Here, Plaintiff does not make an
adequate showing under either prong. His focus is instead on
not having possession of his legal papers, which the Court
has already addressed above. With the extension that the
Court has given him on his opposition and his legal papers
being in his mother's possession, appointment of legal
counsel is not appropriate at this time.
Defendants' motion, they request an extra few days
extension, from October 11 to October 16, 2019, to file their
reply to their motion for summary judgment due to a federal
holiday. ECF No. 139 at 1-2. This request is moot in light of
the extension given above to Plaintiff's opposition.
Defendants also request, in light of the pending motion for
summary judgment, that the mandatory settlement conference
date and other pretrial dates be vacated, pending a decision
on the motion, in order to conserve resources. Id.
cause appearing, the Court GRANTS this
request and ORDERS that the mandatory
settlement conference set for October 16, 2019 and all
remaining pretrial dates as set forth in the First Amended
Scheduling Order (ECF No. 111) are hereby
VACATED, to be reset as necessary pending a
decision on Defendants' motion for summary judgment.
in summary, the Court ORDERS as follows:
Plaintiff's request for an extension of time to oppose
Defendants' motion for summary judgment is
GRANTED. Plaintiff shall file his opposition
to Defendants' motion by no later than
December 6, 2019. ...