(PC) Reed v. Flores

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ZAYA S. REED, No. 2:23-cv-1876 TLN CKD P 12 Plaintiff, 13 v. ORDER 14 J. FLORES, et al., 15 Defendants. 16 17 Plaintiff is a county inmate proceeding pro se in an action brought under 42 U.S.C. § 18 1983. Plaintiff’s “Motion for Appointment of Counsel and/or Summary Judgment” is before the 19 court. (ECF No. 34.) 20 District courts lack authority to require counsel to represent indigent prisoners in section 21 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional 22 circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28 23 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 24 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional 25 circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as 26 well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the 27 legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not 28 abuse discretion in declining to appoint counsel). ] The burden of demonstrating exceptional circumstances is on the plaintiff. Palmer v. 2 || Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Circumstances common to most prisoners, such as 3 || lack of legal education and limited law library access, do not establish exceptional circumstances. 4 | Plaintiff does not identify any exceptional circumstances warranting the appointment of counsel 5 || at this time. 6 Plaintiff also states plaintiff is “requesting a motion for summary judgment” while 7 || discovery is still pending because plaintiff has “provided all parties with discovery... and 8 | [cannot] draw out any more discovery that would raise genuine issues of material fact[.]” (ECF 9 || No. 34 at 1.) To the extent plaintiff is seeking to modify the case schedule for summary judgment 10 || motions, the motion is denied because plaintiff has not shown good cause. See Fed. R. Civ. P. 11 | 16(b)(4) (‘A schedule may be modified only for good cause and with the judge’s consent.”’). In 12 | particular, defendants are entitled to continue conducting discovery through the close of the 13 || period set for discovery for the purpose of obtaining their own evidence. □ 14 To any extent plaintiff is asking the court to enter summary judgment or summary 15 || adjudication in plaintiffs favor, the motion is denied as premature and procedurally improper. 16 | Plaintiffis informed that Rule 56 of the Federal Rules of Civil Procedure governs motions for 17 || summary judgment. A motion for summary judgment, and a party’s opposition to a motion for 18 || summary judgment, both generally require the submission of evidence, such as declarations, 19 || depositions, answers to interrogatories, or authenticated documents. See Fed. R. Civ. P. 56. 20 For the reasons set forth above, IT IS HEREBY ORDERED that plaintiff's request for the 21 || appointment of counsel and/or summary judgment (ECF No. 34) is denied without prejudice. 22 | Dated: May 8, 2025 ( a8 } Kt | / } a a 23 CAROLYNK. DELANEY 24 UNITED STATES MAGISTRATE JUDGE 25 8, reed1876.31.s) Q_—_ x Sod ' Under the current case schedule, discovery closes on July 18, 2025, and any motions for 28 | summary judgment must be filed on or before October 10, 2025. (See ECF No. 32.)