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Roberts v. Khounphixay

United States District Court, W.D. Washington, Seattle

May 24, 2019

JOE J.W. ROBERTS, JR., Plaintiff,
v.
VILMA KHOUNPHIXAY, et al., Defendants.

          ORDER DENYING PLAINTIFF'S MOTIONS FOR RELIEF UNDER FED. R. CIV. P. 56(F), FOR AN EXTENSION OF TIME, AND FOR APPOINTMENT OF COUNSEL

          MICHELLE L. PETERSON United States Magistrate Judge

         I. INTRODUCTION

         Plaintiff Joe Roberts is a state prisoner who is proceeding with this civil rights action pro se and in forma pauperis. This matter comes before the Court at the present time on Plaintiff's motion for relief under Fed.R.Civ.P. 56(f) (dkt. # 23), his motion for extension of time (dkt. # 24), and his two motions for appointment of counsel (dkt. ## 23, 27). Defendants have filed a response opposing Plaintiff's motion for extension of time and his first motion for appointment of counsel. Defendants have not responded to Plaintiff's request for relief under Fed.R.Civ.P. 56(f), nor to Plaintiff's second motion for appointment of counsel which was only recently filed. The Court addresses each of these motions below.

         II. DISCUSSION

         A. Motion for Relief Under Fed.R.Civ.P. 56(f)

         Plaintiff asserts in the instant motion that prison staff have interfered with his ability to litigate this action by withholding and/or destroying his e-files and other legal property. (Dkt. # 23.) He asks the Court to order that he be provided a copy of the entire docket and that the legal liaison at the Washington State Penitentiary be directed to give him copies of all of the e-files he claims were lost by the Department of Corrections (“DOC”). (Id. at 2.)

         Though Plaintiff indicates he is seeking relief under Rule 56(f) of the Federal Rules of Civil Procedure, it is not clear how that provision relates to the relief requested by Plaintiff in his motion. Rule 56(f) provides that a court may grant summary judgment for a nonmoving party, grant a motion on legal or factual grounds not raised by the parties, or consider summary judgment on its own. Plaintiff does not appear to be asking the Court to enter judgment against Defendants, he is merely asking that he be provided copies of his lost legal documents. Rule 56(f) simply does not apply here. The Court will nonetheless address Plaintiff's concerns regarding his missing e-files as that is clearly a matter of great frustration to him. (See Dkt. ## 23, 24, 27.)

         The documents at issue appear to be Plaintiff's complaint (dkt. # 9), mail returned to the Court as undeliverable when Plaintiff was temporarily transferred out of DOC custody to attend court (dkt. # 12), the notice of appearance of Defendants' counsel (dkt. # 13), and the waivers of service returned by each of the Defendants (dkt. ## 14-21). With respect to Plaintiff's complaint, the Court previously directed the Clerk to send Plaintiff a copy his pleading (see dkt. 10 at 5, n. 1), but it appears from the record that the Clerk overlooked that directive and failed to send the pleading. The Court will direct that a copy of the complaint be sent to Plaintiff with this Order.

         With respect to the remaining documents, Plaintiff fails to show any compelling need for physical copies of these documents and it is difficult to discern how Plaintiff's lack of access to the documents might possibly have interfered with his ability to litigate this action. A copy of the Court docket should be sufficient to apprise Plaintiff of the nature of the documents he claims to be missing, and the Court will direct that a copy of the docket also be sent to Plaintiff with this Order. If Plaintiff believes he has a compelling need for a physical copy of any of the documents, he may submit another motion explaining what he believes he needs and why.

         B. Motion for Extension of Time

         Plaintiff asks that he be granted a 45-day extension of time due to interference by prison staff with his legal materials. (Dkt. # 24.) It is not entirely clear from Plaintiff's papers what deadline he is referencing as, at the time Plaintiff filed his motion on April 19, 2019, there were no deadlines pending. While the Court intends to issue an Order establishing pretrial deadlines in conjunction with this Order, there are currently no deadlines to extend and Plaintiff's motion is therefore premature.

         C. Motions for Appointment of Counsel

         Plaintiff makes a request for appointment of counsel in his motion for extension of time (see dkt. # 24 at 1, 4), and he also recently filed a separate motion for appointment of counsel setting forth in more detail why he believes appointment of counsel is appropriate in this case (dkt. # 27).

         Plaintiff is advised that there is no right to have counsel appointed in cases brought under 42 U.S.C. § 1983. Although the Court, under 28 U.S.C. § 1915(e)(1), can request counsel to represent a party proceeding in forma pauperis, the Court may do so only in exceptional circumstances. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984); Aldabe v. Aldabe, 616 F.2d 1089 (9th Cir. 1980). A finding of exceptional circumstances requires an evaluation of both the likelihood of success on the ...


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