Stribling v. Brown et al

Northern District of California, cand-4:2015-cv-03337

ORDER by Judge Yvonne Gonzalez Rogers denying {{11}} Motion for Court to Order Defendants to File Answer; and denying Motion for Appointment of Counsel.

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 AARON LAMONT STRIBLING, 6 Case No. 15-cv-03337-YGR (PR) Plaintiff, 7 ORDER DENYING PLAINTIFF'S v. REQUEST FOR COURT TO ORDER 8 DEFENDANTS TO FILE ANSWER; CORRECTIONAL OFFICER BROWN, AND DENYING HIS MOTION FOR 9 et al., APPOINTMENT OF COUNSEL 10 Defendants. 11 Plaintiff requests that the Court direct Defendants to file an answer to the complaint. The 12 Northern District of California request is DENIED. Dkt. 11. On March 10, 2016, Defendants filed a waiver of reply pursuant to United States District Court 13 42 U.S.C. § 1997e(g) (allowing a defendant to "waive the right of reply" in a civil rights action 14 filed by a prisoner, providing that such a waiver is not an admission of the allegations in the 15 complaint, and disallowing relief for the plaintiff unless a reply has been filed). In their waiver, 16 Defendants correctly noted that the Court had not yet required a reply, pursuant to 42 U.S.C. 17 § 1997e(g)(2). Instead, Defendants have since filed a dispositive motion, which is currently 18 before this Court. See Dkt. 18. 19 Plaintiff also has requested that counsel be appointed to represent him in this action. See 20 Dkt. 11 at 1. A district court has the discretion under 28 U.S.C. §1915(e)(1) to designate counsel 21 to represent an indigent civil litigant in exceptional circumstances. See Wilborn v. Escalderon, 22 789 F.2d 1328, 1331 (9th Cir. 1986). This requires an evaluation of both the likelihood of success 23 on the merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity 24 of the legal issues involved. See id. Neither of these factors is dispositive and both must be 25 viewed together before deciding on a request for counsel under § 1915(e)(1). Here, exceptional 26 circumstances requiring the appointment of counsel are not evident at this time. The request for 27 appointment of counsel is DENIED. Dkt. 11. 28 1 This Order terminates Docket No. 11. 2 IT IS SO ORDERED. 3 Dated: February 7, 2017 4 ______________________________________ YVONNE GONZALEZ ROGERS 5 United States District Judge 6 7 8 9 10 11 12 Northern District of California United States District Court 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2