United States District Court, D. Arizona
Honorable Eileen S. Willett United States Magistrate Judge
before the Court are Plaintiff's Motion to Appoint
Counsel (Doc. 203), Motion to Expand the Relevant Evidence
(Doc. 206), and Motion for Extension of Time (Doc. 210). The
remaining claims in this action are Plaintiff's Eighth
Amendment medical care claims against Defendant Corizon (Doc.
185 at 12). The Joint Proposed Pretrial Order must be filed
no later than February 21, 2019 (Doc. 217).
Motion to Appoint Counsel (Doc. 203) and Motion for Extension
of Time (Doc. 210)
third Motion to Appoint Counsel, Plaintiff requests that the
Court appoint counsel because Plaintiff is proceeding to
trial. Plaintiff states that “[t]here are many things
an Attorney can do that an inmate prisoner can not do, for
example, depose Defendants before trial, prepare proper
Motions, review finding of the medical specialist, obtain
expert witnesses and cross-examine any witness or witnesses
the Defendant's Attorney(s) may put on the stand during
trial.” (Doc. 203 at 2). Plaintiff alternatively
requests that the Court extend time for Plaintiff to hire his
own counsel. As the case is pending trial, the Court
considers the extension of time request to be an extension of
the trial setting.
previously explained to the Plaintiff, 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).
In pro se and in forma pauperis proceedings,
district courts do not have the authority “to make
coercive appointments of counsel.” Mallard v.
United States District Court, 490 U.S. 296, 310 (1989).
District courts, however, do have the discretion to request
that an attorney represent an indigent civil litigant upon a
showing of “exceptional circumstances.” 28 U.S.C.
§ 1915(e)(1); Agyeman v. Corrections Corp. Of
America, 390 F.3d 1101, 1103 (9th Cir. 2004);
Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.
1991). A determination with respect to exceptional
circumstances requires an evaluation of the likelihood of
success on the merits as well as the ability of Plaintiff to
articulate his claims pro se in light of the complexity of
the legal issue involved. Id. “Neither of
these factors is dispositive and both must be viewed together
before reaching a decision.” Id. (quoting
Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.
filings with the Court indicate that Plaintiff is capable of
navigating this proceeding and presenting arguments to the
Court. Indeed, several of Plaintiff's claims survived
summary judgment, and the case is now proceeding to trial.
The Court does not find that exceptional circumstances are
present that would require the appointment of counsel in this
case. Plaintiff remains in a position no different than many
pro se prisoner litigants. The Court will deny
Plaintiff's Motion for Appointment of Counsel (Doc. 203).
Court recognizes that it has broad discretion in supervising
the pretrial phase of litigation. See Zivhovic v.
Southern California Edison Co., 302 F.3d 1080 (9th Cir.
2002). Under Rule 16(b) of the Federal Rules of Civil
Procedure, a district court is required to establish a
schedule that sets pretrial deadlines. A Rule 16 scheduling
order may be “modified only for good cause and with the
judge's consent.” Fed.R.Civ.P. 16(b)(4).
because “[a] scheduling order is not a frivolous piece
of paper, idly entered, which can be cavalierly disregarded
by counsel without peril.” Johnson v. Mammoth
Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992)
(citation and internal quotations marks omitted).
“Disregard of the order would undermine the court's
ability to control its docket, disrupt the agreed-upon course
of the litigation, and reward the indolent and the
cavalier.” Id. Rule 16(b)'s ‘good
cause' standard primarily considers the diligence of the
party seeking the amendment. Id. at 609. If the
movant “was not diligent, the inquiry should
end.” Id. “Moreover, carelessness is not
compatible with a finding of diligence and offers no reason
for a grant of relief.” Id.
case was filed on June 12, 2015 (Doc. 1). Plaintiff has had
three years and eight months to obtain his own counsel.
Plaintiff requests more time to continue to contact attorneys
in the hope of hiring trial counsel. However, Plaintiff has
not identified any attorney who has assured Plaintiff that
he/she would actually represent Plaintiff. The Court has
extended the time for the parties to file their Joint
Proposed Pretrial Order twice (Docs. 211, 217). Plaintiff has
not shown good cause to continue postponing the setting of
trial in this case. Plaintiff has failed to demonstrate any
likelihood that further time will result in Plaintiff
securing trial counsel. Plaintiff's Motion for Extension
of Time will be denied (Doc. 210).
Motion to Expand Relevant Evidence (Doc. 206)
requests that the Court accept into evidence several
previously undisclosed newspaper articles regarding prison
health care and the Parson's case. Defendant Corizon
objects to (i) Plaintiff's Motion as improper, (ii) the
disclosure itself as untimely, and (iii) the material itself
Defendant correctly notes, Fed.R.Civ.P. 5(d) requires that
“disclosures under Rule 26(a)(1) or (2) . . . must not
be filed until they are used in the proceeding or the court
orders filing . . . .” In addition, LRCiv. 5.2 requires
that “[a] ‘Notice of Service' of the
disclosures . . . 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's filing of the
actual disclosure rather than a “Notice of
Service” violates both the Federal and Local Rules of
Civil Procedure. Exhibits intended to be offered at trial are
properly listed in the parties' Joint Proposed Pretrial
extent that Plaintiff is seeking an extension of the
discovery deadline to permit his late disclosure, the
Plaintiff fails to demonstrate the requisite good cause
necessary to allow such a late request. Discovery closed in
this case on October 2, 2017 (Doc. 129 at 3). Plaintiff was
required to disclose the evidence he intended to rely upon at
trial by October 2, 2017. If a pretrial schedule cannot be
met despite the diligence of the party seeking an extension
of time, the Court may modify its scheduling order.
See MILLER & KANE, FEDERAL PRACTICE AND
PROCEDURE § 1522.1 at 231 (2d ed. 1990) (good cause
means scheduling deadlines cannot be met despite party's
diligence). “Although the existence or degree of
prejudice to the party opposing the modification might supply
additional reasons to deny a motion, the focus of the inquiry