United States District Court, D. Montana, Helena Division
Johnston, United States Magistrate Judge.
before the Court are Plaintiff Laurence Stewart's Third
Motion to Appoint Counsel (Doc. 37), Motion for Extension of
Time to Complete Discovery (Doc. 39), Motion to Compel (Doc.
41), Fourth Motion to Appoint Counsel (Doc. 52), Motion to
Strike (Doc. 54), Second Motion to Compel (Doc. 56), Motion
for Extension of Time to File a Reply (Doc. 65), Motion for
Sanctions (Doc. 67). In addition, Defendant has filed Motion
for Protective Order (Doc. 45) and a Motion to Strike Reply
or Alternatively to File a Sur-Reply (Doc. 72).
Motions to Appoint Counsel (Docs 37, 52)
Stewart's prior motions for appointment of counsel have
been denied. (Docs. 3, 9.) In his latest motions (Docs. 37,
52), he again indicates he is unable to obtain counsel, he
has appealed the dismissal of some of his causes of action,
needs to discover the names of the IPS officers in order to
reinstate other claims, he lacks training in the law and
research time, and the interests of justice would be best
served if he were appointed counsel. (Doc. 38).
forth in prior Orders denying Mr. Stewart's requests for
counsel, in a civil rights case such as this, the Court can
only request the voluntary assistance of counsel and can only
do so under exceptional circumstances. 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). The test for exceptional
circumstances requires the Court to evaluate the
plaintiff's likelihood of success on the merits and the
ability of the plaintiff to articulate his claims pro se in
light of the complexity of the legal issues involved.
Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.
1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir.
1983); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir.
2009). Circumstances common to most prisoners, such as lack
of legal education and limited law library access, do not
establish exceptional circumstances that would warrant a
request for voluntary assistance of counsel. Palmer,
560 F.3d at 970.
Stewart has still not demonstrated the required exceptional
circumstances. His remaining claim is not particularly
complex and he has been able to effectively articulate his
claims pro se as evidenced by his multiple motions pending
before the Court. The difficulties Mr. Stewart lists are
circumstances common to most prisoners that do not warrant
appointment of counsel. The Court will not appoint counsel at
Motion for Extension (Doc. 39)
Stewart seeks a 90-day extension of the discovery deadline.
He argues he has not been able to confer with counsel for
Defendant and believes counsels' actions are a purposeful
attempt to run the time for discovery.
motion will be denied. Defendant has filed a motion for
summary judgment and Mr. Stewart will be required to file a
response. The remaining issue is a relatively straightforward
and the Court does not see any justification to delay this
matter further. If Mr. Stewart believes there is discoverable
evidence essential to justify his opposition to summary
judgment, he must describe such evidence in his response and
explain by affidavit or declaration why the evidence is
essential. See Fed.R.Civ.P. 56(d).
Motions to Compel/ Motion for Protective Order (Docs. 41, 45,
Court first notes that Mr. Stewart failed to comply with
Local Rule 26.3(c)(2) which provides:
motions to compel or limit discovery must:
(A) set forth the basis for the motion;
(B) certify that the parties complied with subsection (c)(1)
or a description of the moving party's attempts to
(C) attach, as an exhibit:
(i) the full text of the discovery sought; and
(ii) the full text of the response.
or not Mr. Stewart properly conferred with counsel prior to
filing his motions, he did not attach as an exhibit the full
text of Defendant's response to his discovery requests in
his first motion to compel. Defendant, however, attached his
discovery responses to the response to the motion to compel.
(Doc. 43-12.) Despite Mr. Stewart's failure to comply
with the Court's Local Rule, in an effort to not delay
this matter further, the Court will go to the merits of Mr.
may obtain discovery regarding any non-privileged matter that
is relevant to any party's claim or defense and
proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount
in controversy, the parties' relative access to relevant
information, the parties' resources, the importance of
the discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its likely
benefit. Fed.R.Civ.P. 26(b)(1).
second interrogatory, Mr. Stewart seeks:
Please list the names, titles, and your relationship to any
current employee(s) of the Montana Department of Correction
(MDOC) and it's [sic] subsidiaries (MSP, MWP, Etc.), that
currenly [sic] are or ever were considered anything other
than simply co-workers, to Sam Jovanovich. Please list
multiple relationship types if applicable and include past
relationships if applicable and not obvious inference of the
current, ie. “former girlfriend and current wife”
would just be “wife”.
(Doc. 43-12 at 2, ¶ 2.) Defendant Jovanovich objected on
the grounds that the request was overbroad, burdensome,
vague, privacy and confidentiality, and not calculated to
lead to the discovery of admissible evidence. (Doc. 43-12 at
Stewart argues he is seeking to expose the “good
ol' boy” system because he believes Mr. Jovanovich
has family and close friends in high places that have
protected his misconduct. Defendant counters that this
request is “an improper fishing expedition into
Defendant's personal life, wholly removed from the
subject matter at issue.” (Doc. 43 at 11.) The Court
agrees. The sole issue remaining in this case is whether
Jovanovich fired Mr. Stewart for submitting grievances.
Jovanovich's relationships with other DOC staff is not
reasonably calculated to lead to the discovery of admissible
evidence. The motion to compel will be denied on this issue.