Free Order on Motion to Continue - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. Brian Cox, et al., Defendants. Kerry Allynn Chase, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) No. CV 04-056 PHX NVW ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Before the court is Plaintiff's Motion for Continuance [Rule 56(f)] (doc. # 95), which seeks an extension of the time to respond to Defendant Cox's Motion for Summary Judgment (doc. #70) and Defendant Robert Sesma's Motion for Summary Judgment (doc. #69) to take further discovery. Plaintiff asks for time to take the depositions of 56 names persons. By virtue of prior case management order entered by Magistrate Judge Sitver, all parties had ample time for discovery, which was to be completed by March 16, 2005. All requests for discovery were to have been made no later than February 14, 2005, and all discovery disputes brought to the court's attention no later than April 15, 2005. Scheduling Order dated November 19, 2004 (doc. # 44). Plaintiff had full opportunity to conduct discovery and presented no dispute to the court concerning any dissatisfaction with discovery given. Rather than filing their motions for summary judgment prematurely, the moving defendants filed them on the last day they could be filed under the case management order, May 16, 2005. A Rule 56(f), Fed. R. Civ. P., continuance is appropriate when the party opposing the motion has not had an adequate opportunity to obtain discovery to respond to the motion.
Document 96 Filed 01/19/2006 Page 1 of 3

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Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986) (noting that Rule 56(f) protects a nonmoving party from being "'railroaded' by a premature motion for summary judgment" when it "has not had an opportunity to make full discovery"). It is not a vehicle to reopen discovery that has closed after fair opportunity of which the party opposing the motion did not avail himself. See Rosario v. Livaditis, 963 F.2d 1013, 1019 (7th Cir. 1992) ("A party who fails to pursue discovery in the face of a court ordered cut-off cannot plead prejudice from his own inaction"). Plaintiff has not shown basis for a Rule 56(f) continuance, and his motion will therefore be denied. In the conclusion of his brief Plaintiff also asks the court to appoint advisory counsel to assist Plaintiff in responding to the pending motions for summary judgment. There is no constitutional right to appointment of counsel in a civil case. See Ivey v. Board of Regents of Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982); Randall v. Wyrick, 642 F.2d 304, 306 n.6 (8th Cir. 1981). The appointment of counsel in a civil rights case is required only when exceptional circumstances are present. Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (citing Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980)); Wilborn v. Escalderon, 789 F.2d 1328, 1330-31 (9th Cir. 1986). To decide whether these exceptional circumstances exist, a district court must evaluate both "the likelihood of success on the merits [and] the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved." Wilborn, 789 F.2d at 1330-31 (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir.1983)). Moreover, neither factor is dispositive and both must be viewed together before deciding on a request for counsel under 28 U.S.C. § 1915(e)(1). See, Wilborn, 789 F.2d at 1331. Except for mere conclusions that his case is likely to succeed on its merits, Plaintiff fails to present evidence of exceptional circumstances requiring the appointment of counsel. Plaintiff is more than able to communicate his thoughts in writing to the court. Moreover, the remaining claim in the case is factual and evidentiary in character, not requiring any great legal sophistication. Either the evidence is within Plaintiff's knowledge or he has had ample opportunity to seek information from others in discovery. -2Document 96 Filed 01/19/2006 Page 2 of 3

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In addition, the court's authority under 28 U.S.C. § 1915(e)(1) is only to "request" an attorney to represent a person unable to afford counsel, not to compel any attorney to undertake the representation. To the extent Plaintiff may have been assisted by counsel not appearing of record, Plaintiff does not need any appointment from the court for such counsel to continue assisting Plaintiff in that manner. IT IS THEREFORE ORDERED that Plaintiff's Motion for Continuance [Rule 56(f)] (doc. # 95) is denied. IT IS FURTHER ORDERED that, notwithstanding the lack of merit to Plaintiff's Motion for Continuance [Rule 56(f)] (doc. # 95), Plaintiff's time to respond to Defendant Cox's Motion for Summary Judgment (doc. #70) and to Defendant Robert Sesma's Motion for Summary Judgment (doc. #69) is extended to February 10, 2006, and the time for Defendants' optional replies is extended to March 6, 2005. The court will rule on the motion by March 31, 2006, and therefore these due dates will not be extended absent extraordinary circumstances. IT IS FURTHER ORDERED that Plaintiff's request to appoint advisory counsel is denied. DATED this 19th day of January 2006.

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