United States District Court, D. Arizona
S. Willett United States Magistrate Judge
a civil rights action filed by pro se prisoner Richard
LeGrand Gause ("Plaintiff") pursuant to 42 U.S.C.
§ 1983. The Court has reviewed the documents recently
filed by Plaintiff (Docs. 21- 24) and issues the rulings set
Plaintiff’s "Request to be appointed counsel"
May 27, 2016 filing (Doc. 21), Plaintiff requests that Court
appoint him counsel. In support of his request, Plaintiff
states in part that (i) he is "being denied access to
the E-File system and access to have copies made"; (ii)
the Arizona Department of Corrections ("ADC")
allegedly lied to the Marshals Service that Defendant Dr.
Indyis no longer employed by ADC; (iii) he is
unsure on how to proceed as to Defendant East, who may be
deceased; and (iv) correctional officers "are making it
near impossible to adequately meet deadlines and properly do
this suit." There is no constitutional right to the
appointment of counsel in a civil case. See Johnson v.
U.S. Dep’t of Treasury, 939 F.2d 820, 824 (9th
Cir. 1991); Ivey v. Bd of Regents of the Univ. of
Alaska, 673 F.2d 266, 269 (9th Cir. 1982).
"However, a court may under ‘exceptional
circumstances’ appoint counsel for indigent civil
litigants pursuant to 28 U.S.C. § 1915(e)(1)."
Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009)
(quoting Agyeman v. Coors. Corp. of Am., 390 F.3d
1101, 1103 (9th Cir. 2004)). "When determining whether
‘exceptional circumstances’ exist, a court must
consider ‘the likelihood of success on the merits as
well as the ability of the [plaintiff] to articulate his
claims pro se in light of the complexity of the legal issues
involved.’" Palmer, 560 F.3d at 970
(quoting Weygandt v. Look, 718 F.2d 952, 954 (9th
Cir. 1983)); see also Terrell v. Brewer, 935 F.2d
1015, 1017 (9th Cir. 1991). "Neither of these
considerations is dispositive and instead must be viewed
together." Palmer, 560 F3.d at 970 (citing
Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.
has not demonstrated a likelihood of success on the merits,
nor has he shown that he is experiencing difficulty in
litigating this case because of the complexity of the issues
involved. Plaintiff’s continued filings with the Court
indicate that Plaintiff is capable of navigating this
proceeding and presenting arguments to the Court. See
Wilborn, 789 F.2d at 1331 ("If all that was
required to establish successfully the complexity of the
relevant issues was a demonstration of the need for
development of further facts, practically all cases would
involve complex legal issues."). Plaintiff remains in a
position no different than many pro se prisoner
litigants. In sum, Plaintiff has not shown that exceptional
circumstances are present that would require the appointment
of counsel in this case. Having failed to show that any
exceptional circumstances are present, Plaintiff’s
request for appointment of counsel will be denied.
Plaintiff’s "Extension on time frames of
Discovery" (Doc. 22)
above filing, Plaintiff requests an "indefinite time
extension to produce Discovery Request #1 until copies can be
made." Plaintiff’s filing, dated May 24, 2016,
states that Plaintiff is in detention and is "being
denied access to make copies, also access to the E-File
system." The Court notes that on May 26, 2016, Plaintiff
filed a document captioned "Discovery Response"
(Doc. 20). The document states "[a]ttached are requested
Documents in #1 Discovery Request." Plaintiff’s
"Extension on time frames of Discovery" (Doc. 22)
will be denied as moot.
Plaintiff’s May 27, 2016 Filing at Doc. 23, Docketed as
"Notice re: Discovery Request"
27, 2016, the Clerk of Court docketed a document signed by
Plaintiff that is addressed to Mark Brnovich with the subject
line "Discovery Request." The introductory
paragraph states "Hi, I’m writing with my first
Rules of Civil Procedure Rule 5(d) states that "the
following discovery requests and responses must not be filed
until they are used in the proceeding or the court orders
filing: depositions, interrogatories, requests for documents
or tangible things or to permit entry onto land, and requests
for admission." LRCiv 5.2 provides that "[a]
‘Notice of Service’ of the disclosures and
discovery requests and responses listed in Rule 5(d) of the
Federal Rules of Civil Procedure must be filed within a
reasonable time after service of such papers." Plaintiff
has not "used" the discovery requests contained in
his filing (Doc. 23) in the proceeding (e.g. by relying upon
responses in support of a motion, supporting a motion to
compel, etc.). Therefore, Plaintiff’s filing of the
actual discovery requests instead of a "Notice of
Service" is in violation of LRCiv 5.2 and Rule 5(d) of
the Federal Rules of Civil Procedure. Accordingly,
Plaintiff’s filing docketed as "Notice re:
Discovery Request" (Doc. 22) will be stricken.
Plaintiff’s Filing at Doc. 24, Docketed as "Motion
for Copy of Discovery Response"
31, 2016, Plaintiff filed a document captioned as "Need
Discovery Response Copy, " which the Clerk of Court
docketed as "Motion for Copy of Discovery
Response." Plaintiff provides a detailed recount of an
alleged error that resulted in Plaintiff not receiving a
complete copy of Document 20. The Court will direct the Clerk
of Court to mail Plaintiff a copy of Document 20.
Service on Defendants ...