Unpublished Disposition, 865 F.2d 264 (9th Cir. 1988)

MEMORANDUM^** 

This case is a consolidation of two civil rights actions in which the plaintiff, William McKinney, a state prisoner, sought damages for alleged constitutional violations arising out of his transfer from the Southern Nevada Correctional Center to the Nevada State Prison. The defendants are various officers of the Nevada Department of Prisons. Following a two day bench trial, the district judge granted defendants' motion to dismiss under Rule 41(b) Federal Rules of Civil Procedure. McKinney appeals to this court, alleging four errors. First, McKinney argues that the district court erred in denying his motion for partial summary judgment. Second, McKinney argues that the district court erred in denying his requests for appointment of counsel. Third, McKinney argues that the district court erred in denying his pretrial motion for sanctions against the defendants. Finally, McKinney argues that the district court erred in denying his motion for a jury trial. We find no merit to any of these contentions and thus affirm the district court.

SUMMARY JUDGMENT

McKinney contends that the district court was required to grant summary judgment on the basis of the pleadings because there was no contested issue of whether or not he had an "enemy situation" at the prison to which he was transferred. He contends that the district judge erred by examining facts outside the defendants' answer.

There is no merit to McKinney's claim of error. Rule 56(e), Fed. R. Civ. P., requires the adversary party to go beyond mere denials in pleading and to present "specific facts showing that there is a genuine issue for trial". Rule 56(e); Franklin v. Murphy, 745 F.2d 1221, 1235 (9th Cir. 1984). The district court did not err in considering evidence presented for the first time in opposition to the motion for summary judgment.

MOTION TO APPOINT COUNSEL

We review for abuse of discretion a district court's decision whether or not to appoint counsel for indigent plaintiffs in a civil matter. Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). The court is authorized to request an attorney to represent "any such person unable to employ counsel ..." 28 U.S.C. § 1915. This decision is one for the district judge's discretion guided by a concern for the substantiality of the plaintiff's case, its complexity, and the plaintiff's ability to handle legal procedures and arguments, as well as his likelihood of success on the merits. Wilburn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). McKinney's case was neither substantial nor complex, and the likelihood of success was low.

Appointment of counsel is limited in this circuit to "exceptional circumstances". See, Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980), United States ex rel Gardner v. Madden, 352 F.2d 792, 794 (9th Cir. 1965). We find no such exceptional circumstances here. The district court did not abuse its discretion in refusing to appoint counsel.

McKinney argues that the district court erred in denying his motion for sanctions. We review a district court's decision regarding sanctions for abuse of discretion, North American Watch Co. v. Princess Ermine Jewels, 786 F.2d 1447, 1450 (9th Cir. 1986).

McKinney alleges that the defendants' delay prejudiced him by interfering with his trial preparations and making the production of effective witnesses more difficult through the passage of time. Without denigrating the seriousness of the difficulties state prisoners face in trial preparation and producing witnesses, we find no ground for concluding that the district court abused its discretion. McKinney sought a default judgment. Sanctions such as dismissal or judgment by default are "drastic remedies which should be used only in extreme situations ...", Flaska v. Little River Marine Construction Co., 389 F.2d 885, 887 (5th Cir. 1968), cert. denied, 392 U.S. 928, or where the failure to comply is due to "... willfulness, bad faith, or fault of the part [ies]", Wyle v. R.J. Reynolds, 709 F.2d 585, 589 (9th Cir. 1983). The district court was not compelled to grant sanctions against the defendants on the facts presented.

RIGHT TO A JURY TRIAL

The denial of a motion for a jury trial is reviewed de novo. Standard Oil Co. of California v. Arizona, 738 F.2d 1021, 1022-23 (9th Cir. 1984), cert. denied, 469 U.S. 1132 (1985). Where the district court strikes the plaintiffs demand on the grounds of waiver, we reverse only for abuse of discretion. Blau v. Del Monte Corp., 748 F.2d 1348, 1357 (9th Cir. 1984), cert. denied, 474 U.S. 865 (1985).

Mckinney's demand for jury trial was made more than six months after the pleadings were filed. The applicable rule requires that the demand be made within ten days of filing of the last pleading. Fed. R. Civ. P. 38. Failure to make a timely motion is a waiver of the right to jury. Lewis v. Time Inc., 710 F.2d 549, 556-57 (9th Cir. 1983). The district court did not err in ruling that a jury was waived.

AFFIRMED.