Opinion
No. CIV S-10-0397 JAM DAD P
10-05-2011
JAMES E. BOWELL, Plaintiff, v. CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., Defendants.
ORDER
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has filed two discovery motions. The first is a motion to compel responses to discovery requests that plaintiff apparently served on February 1, 2011 and April 19, 2011. See Motion to Compel, filed May 27, 2011 (Doc. No. 42), at 1. Defendants oppose the motion on the ground that it is untimely. Plaintiff's motion was delivered to prison officials for mailing to the court on May 17, 2011, four days after expiration of the deadline for filing discovery motions in this action. See Discovery and Scheduling order, filed January 20, 2011 (Doc. No. 30), at 6. Plaintiff's motion to compel is untimely and will therefore be denied.
Although plaintiff has set forth the requests at issue in the body of the motion, his motion is not accompanied by copies of the requests served on defendants.
The motion was filed in this court on May 27, 2011. Under the mailbox rule, the date on which it was delivered to prison officials for mailing is deemed the filing date for purposes of determining its timeliness. See Houston v. Lack, 487 U.S. 266 (1988).
With their opposition, defendants request judicial notice of this order. Defendants' request is unnecessary.
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In the same motion, plaintiff seeks appointment of counsel. The United States Supreme Court has ruled that district courts lack authority to require counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). In the present case, the court does not find the required exceptional circumstances. Plaintiff's motion for the appointment of counsel will therefore be denied.
On August 4, 2011, plaintiff filed a motion for leave to take depositions of inmates at Kern Valley State Prison. (Doc. No. 51.) By this motion, plaintiff seeks reconsideration of this court's May 26, 2011 order denying without prejudice an earlier motion he had filed seeking court-ordered access to other buildings at Kern Valley State Prison to interview or depose inmate witnesses. As noted above, under the court's scheduling order discovery closed in this action on May 13, 2011. Plaintiff's August 4, 2011 motion for leave to take depositions is also untimely and will therefore be denied.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff's May 27, 2011 motion to compel (Doc. No. 42) is denied;
2. Plaintiff's May 27, 2011 motion for appointment of counsel (Doc. No. 42) is denied; and
3. Plaintiff's August 4, 2011 motion for leave to depose inmate witnesses (Doc. No. 51) is denied.
DALE A. DROZD
UNITED STATES MAGISTRATE JUDGE