(PC) Hash v. Faggianelli ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LAWRENCE GEORGE HASH., No. 2:17-cv-1721 TLN AC P 12 Plaintiff, 13 v. ORDER 14 T. RALLOS, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, and has filed motions for an extension of time and 18 to appoint counsel. ECF Nos. 161, 162. 19 I. Motion for Extension of Time 20 Plaintiff has filed a motion for an extension of time, up to March 13, 2024, to file a reply 21 in support of his motions to compel discovery. ECF No. 161. Good cause appearing, the request 22 for extension of time will be granted. However, plaintiff is cautioned that given the age of this 23 case and the time that has already been devoted to his motions to compel, no additional 24 extensions of time will be granted. 25 II. Motion to Appoint Counsel 26 Plaintiff has also requested the appointment of counsel for the limited purpose of re- 27 opening discovery and conducting depositions. ECF No. 162. The United States Supreme Court 28 has ruled that district courts lack authority to require counsel to represent indigent prisoners in 1 § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain 2 exceptional circumstances, the district court may request the voluntary assistance of counsel 3 pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); 4 Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 5 “When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the 6 likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims 7 pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965, 8 970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden 9 of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to 10 most prisoners, such as lack of legal education and limited law library access, do not establish 11 exceptional circumstances that would warrant a request for voluntary assistance of counsel. 12 Plaintiff requests appointment of counsel to assist in deposing the defendants. ECF No. 13 162. However, plaintiff’s contention that he is unable to depose defendants due to his indigence 14 and pro se status is a circumstance common to most inmates and does not warrant the 15 appointment of counsel. Moreover, because discovery in this case is closed, the motion is also 16 essentially a motion to re-open discovery and plaintiff has not demonstrated a need to re-open 17 discovery. 18 In considering whether to grant a motion to amend the scheduling order and re-open 19 discovery, the court is to consider: 20 “1) whether trial is imminent, 2) whether the request is opposed, 3) whether the non-moving party would be prejudiced, 4) whether the 21 moving party was diligent in obtaining discovery within the guidelines established by the court, 5) the foreseeability of the need 22 for additional discovery in light of the time allowed for discovery by the district court, and 6) the likelihood that the discovery will lead to 23 relevant evidence.” 24 City of Pomona v. SQM N. Am. Corp., 866 F.3d 1060, 1066 (9th Cir. 2017) (quoting United 25 States ex rel. Schumer v. Hughes Aircraft Co., 63 F.3d 1512, 1526 (9th Cir. 1995)). It is 26 “significant” when a party is seeking to re-open discovery rather than extend the discovery 27 deadline. W. Coast Theater Corp. v. City of Portland, 897 F.2d 1519, 1524 (9th Cir. 1990). “The 28 difference [between the two types of requests] is considerable” because “a request for an 1 || extension acknowledges the importance of a deadline, [while] a retroactive request suggests that 2 || the party paid no attention at all to the deadline.” Id. 3 Although trial is not imminent and plaintiff has identified the reason for the belated 4 || request, it is not clear that re-opening discovery is necessary to address the issue or that 1t would 5 || lead to relevant evidence. Plaintiff's motion appears to be largely based on allegations that 6 || defendants have withheld information responsive to requests that have already been served or that 7 || a deposition will allow him to somehow obtain responses from them that contradict their 8 || responses to written discovery. ECF No. 162 at 6-37. With respect to instances where he 9 || believes defendants have withheld information responsive to his discovery requests, it is unclear 10 || why additional discovery is necessary to address the alleged deficiency of responses when 11 | plaintiff has already filed lengthy motions to compel. Nor does plaintiff's belief that he will get 12 || defendants to testify contrary to their written discovery responses demonstrate a likelihood of 13 || obtaining relevant evidence if discovery is re-opened. Finally, plaintiff has failed to establish 14 | grounds warranting appointment of counsel to conduct the depositions and, even if the court were 15 || to re-open discovery to allow plaintiff to take defendants’ depositions, he has not shown that he 16 || would be able to afford the cost of depositions given his indigent status. 17 For these reasons, plaintiff's motion to appoint counsel and re-open discovery will be 18 | denied. 19 CONCLUSION 20 Good cause appearing, IT IS HEREBY ORDERED that: 21 1. Plaintiff's motion for an extension of time (ECF No. 161) is granted. 22 2. Plaintiff shall have until March 13, 2024, to file a reply in support of his motion to 23 || compel. No further extensions of time will be granted. 24 3. Plaintiffs motion to appoint counsel and re-open discovery (ECF No. 162) is 25 || DENIED. 26 || DATED: February 21, 2024 ~ Ctt10 Lhar—e_ 27 ALLISONCLAIRE. SS 28 UNITED STATES MAGISTRATE JUDGE