(PC) Cain v. Paviglianti ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTONIO LAMONT CAIN, Case No. 2:20-cv-01768-JDP (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTIONS TO COMPEL DISCOVERY AND TO 13 v. APPOINT COUNSEL 14 B. PAUIGLIATI, ECF Nos. 22, 24 15 Defendant. 16 17 Plaintiff is a federal prisoner proceeding without counsel with claims brought under 18 Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). He has filed two motions that 19 collectively request that FCI Herlong and Correctional Officer Little—neither parties to this 20 action—be ordered to produce documents. ECF Nos. 22 & 24. The most recently filed motion 21 also includes plaintiff’s third request for appointment of counsel. ECF No. 24 at 1. 22 Plaintiff’s motions to compel discovery are premature. The court recently ordered service 23 of the complaint by the U.S. Marshal. ECF No. 25. After defendant files an answer to the 24 complaint, the court will issue a discovery and scheduling order. Plaintiff can then serve defense 25 counsel with requests for discovery pursuant to Federal Rules of Civil Procedure 26-37 and 45. If 26 plaintiff is unable to obtain necessary discovery from defendant, he can then file an appropriate 27 motion asking for the court’s assistance. Plaintiff’s motions to compel discovery are denied. 28 1 Plaintiffs request to appoint counsel will also be denied. As previously explained to 2 | plaintiff, he does not have a constitutional right to appointed counsel in this action, see Rand v. 3 | Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court lacks the authority to require an 4 | attorney to represent plaintiff. See Mallard v. U.S. District Court for the Southern District of 5 | Iowa, 490 U.S. 296, 298 (1989). The court may request the voluntary assistance of counsel. See 6 | 28 U.S.C. § 1915(e)(1) (‘The court may request an attorney to represent any person unable to 7 | afford counsel”); Rand, 113 F.3d at 1525. However, without a means to compensate counsel, the 8 | court will seek volunteer counsel only in exceptional circumstances. In determining whether such 9 || circumstances exist, “the district court must evaluate both the likelihood of success on the merits 10 | [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 11 | legal issues involved.” Rand, 113 F.3d at 1525 (internal quotation marks and citations omitted). 12 The first amended complaint’s allegations are not exceptionally complicated, and plaintiff 13 | has not demonstrated that he is likely to succeed on the merits. For these reasons, his motion to 14 || appoint counsel is denied without prejudice. 15 Accordingly, it is hereby ORDERED that plaintiff's motions to compel discovery and for 16 | appointment of counsel, ECF Nos, 22 & 24, are denied. 17 18 IT IS SO ORDERED. 19 ( q Sty — Dated: _ May 11, 2021 20 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28