(PC) Foust v. Hall et al, No. 2:2016cv00142 - Document 54 (E.D. Cal. 2016)
Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 12/9/2016 DENYING plaintiff's 51 , 52 , 53 requests for counsel; and RECOMMENDING this case be dismissed for failure to comply with court orders. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 21 days. (Yin, K)
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(PC) Foust v. Hall et al Doc. 54 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CARL FOUST, 12 13 14 15 No. 2:16-cv-0142 GEB AC P Plaintiff, v. ORDER AND FINDINGS AND RECOMMENDATIONS HALL, et al., Defendants. 16 17 18 19 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. By order filed November 2, 2016, plaintiff was given a final extension of twenty-one days 20 to file an amended complaint and warned that failure to comply would result in a 21 recommendation that the action be dismissed. ECF No. 50. Twenty-one days has now passed 22 and plaintiff has failed to file an amended complaint. Plaintiff has instead submitted three letters 23 to the court. ECF Nos. 51-53. As with most of plaintiff’s previous filings, these letters advise the 24 court that plaintiff has medical and developmental difficulties, difficulty getting into the law 25 library, and that he requires assistance. Id. He also acknowledges that he understands that he will 26 not receive any further extensions of time to file an amended complaint. ECF No. 52. 27 28 It has been over five months since the original complaint was denied with leave to amend, and though plaintiff continues to claim that he is unable to file an amended complaint within the 1 Dockets.Justia.com 1 time provided, he has managed to file numerous other documents with the court (ECF Nos. 33, 2 34, 36, 37, 39-49, 51-53) and recently initiated a new lawsuit (Foust v. Kuko-ojo, Case No. 2:16- 3 cv-02731 AC, opened Nov. 17, 2016). In light of plaintiff’s failure to file an amended complaint 4 in this case, the undersigned will recommend dismissal of the case for failure to comply with 5 court orders. 6 To the extent any of plaintiff’s most recent letters could be construed as requests for 7 counsel, they will be denied. The United States Supreme Court has ruled that district courts lack 8 authority to require counsel to represent indigent prisoners in § 1983 cases. Mallard v. United 9 States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the district 10 court may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell 11 v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 12 (9th Cir. 1990). 13 “When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the 14 likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims 15 pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965, 16 970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden 17 of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to 18 most prisoners, such as lack of legal education and limited law library access, do not establish 19 exceptional circumstances that would warrant a request for voluntary assistance of counsel. 20 In screening the complaint, the court outlined the applicable legal standards for plaintiff 21 and explained to him what he would have to show in order to state a claim. ECF No. 30. There is 22 no evidence that plaintiff has attempted to follow the instructions given by the court and been 23 unable to do so, despite several reminders of what is required of him (ECF Nos. 35, 38, 50), and 24 his recent initiation of a new lawsuit indicates he is capable of proceeding without counsel at this 25 stage. The court therefore finds that appointment of counsel is not warranted. 26 Accordingly, IT IS HEREBY ORDERED that plaintiff’s requests for counsel (ECF Nos. 27 51-53) are denied. 28 //// 2 1 2 3 IT IS FURTHER RECOMMENDED that this case be dismissed for failure to comply with court orders. See L.R. 110. These findings and recommendations are submitted to the United States District Judge 4 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days 5 after being served with these findings and recommendations, plaintiff may file written objections 6 with the court and serve a copy on all parties. Such a document should be captioned “Objections 7 to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 8 objections within the specified time may waive the right to appeal the District Court’s order. 9 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 10 DATED: December 9, 2016 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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