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Barrera suggests for the first time that " efendants submitted knowingly false information to the court that they provided knee replacement surgery. Before addressing the issues raised by the parties, the Court shall first examine other pending motions.
Non-Dispositive Motions A. Appointment of Counsel Barrera again seeks appointment of counsel, arguing that the medical issue is complex, discovery has not occurred, and he has limited knowledge and access to a law library.
As previously explained, federal district court judge's power to appoint counsel under 28 U. See Cook v.
There is no absolute right to appointment of counsel absent "exceptional circumstances. Exceptional circumstances exist where a "pro se litigant has a colorable claim but lacks the capacity to present it.
Barrera has demonstrated the wherewithal to either articulate the legal and factual basis of his claims himself or secure meaningful assistance in doing so.
Further, the issue pending before the Court is not unduly complicated. Barrera now states that in he was told by the surgeon who performed the arthroscopic surgery that if meniscus debridement failed to correct his knee problems, total knee replacement would be necessary.
See ECF No. Defendants contend—correctly — that the Complaint now before the Court references the arthroscopic surgery that was to be performed pursuant to medical findings made in, and in no way references total knee replacement.
Defendants argue that Barrera's claims in the instant lawsuit should be limited to the issue raised in the Complaint concerning whether the arthroscopic debridement promised in occurred and the adequacy of pain management following that surgery, and they move to strike Barrera's "Supplemental Response" clarifying the scope and intent of his Complaint as an impermissible surreply.
A surreply is permitted when the moving party would be unable to contest any matters raised by the opposing party in their reply for the first time. See Lewis v. In this district, a surreply is not generally permitted unless ordered, see Local Rule 105.
This exception is not applicable here.
Defendants contend that they have not raised new matters for the first time in their reply, and move to strike the surreply. However, Barrera's "Supplemental Response" is not a surreply; instead, it is an eleventh-hour attempt to amend his Complaint to add a new claim concerning the need for knee replacement.
See Whitten v. Apria Healthcare Grp.