-SMS (PC) Braley v. Wasco State Prison, et al, No. 1:2007cv01423 - Document 36 (E.D. Cal. 2011)

Court Description: ORDER signed by Judge Oliver W. Wanger on 3/21/2011 adopting 31 FINDINGS AND RECOMMENDATIONS recommending denial of 28 , 29 Motions; adopting 32 FINDINGS AND RECOMMENDATIONS recommending dismissal in part and denying 34 Motion to Appoint Counsel. (Amended Complaint due by 4/25/2011). (Lundstrom, T)

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-SMS (PC) Braley v. Wasco State Prison, et al Doc. 36 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 THOMAS D. BRALEY, 10 Plaintiff, 11 12 v. WASCO STATE PRISON, et al., 13 Defendants. CASE NO. 1:07-cv-01423-OWW-SKO ORDER ADOPTING FINDINGS AND RECOMMENDATIONS RECOMMENDING DENIAL OF MOTIONS (ECF Nos. 28, 29, 31) 14 ORDER ADOPTING FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION IN PART 15 (ECF Nos. 27, 32, 35) 16 ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL 17 (ECF No. 34) 18 / THIRTY-DAY DEADLINE 19 20 I. Procedural History 21 Plaintiff Thomas D. Braley (“Plaintiff”) is a state prisoner proceeding pro se and in forma 22 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United 23 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 24 On June 21, 2010, Plaintiff filed a motion for judgment on the pleadings. Plaintiff filed a 25 motion for a temporary restraining order and preliminary injunction on July 22, 2010, and a motion 26 injunctive relief on August 27, 2010. On February 9, 2011, the Magistrate Judge filed findings and 27 recommendations recommending dismissal of action and findings and recommendations 28 recommending denial of motions herein which were served on the parties and which contained notice 1 Dockets.Justia.com 1 to the parties that any objections to the findings and recommendations were to be filed within thirty 2 days. Plaintiff filed objections to findings and recommendations on March 11, 2011, which have 3 been read and considered. On March 11, 2011, Plaintiff also filed a motion seeking the appointment 4 of counsel. 5 II. Findings and Recommendations Recommending Dismissal of Action 6 The Magistrate Judge recommended dismissal of this action for Plaintiff’s failure to file an 7 amended complaint. Plaintiff’s original complaint was dismissed for failure to state a claim upon 8 which relief could be granted on August 6, 2009. Plaintiff was granted thirty days to file an amended 9 complaint and failed to comply with the order. Since no complaint has been filed the motion for 10 judgment on the pleadings will be denied as there are no pleadings on which judgment could be 11 granted. Fed. R. Civ. P. 12(c). 12 In light of the fact that the objections set forth Plaintiff’s claims in this action, he will be 13 granted one final opportunity to file an amended complaint in compliance with the order issued on 14 August 6, 2009, within thirty days. Plaintiff is advised that no extensions of time will be granted as 15 he has had two and one half years to file his complaint and his objections evidence his ability to 16 comply with a court deadline when necessary to avert dismissal. If Plaintiff fails to file an amended 17 complaint within thirty days the findings and recommendations will be adopted in full and this action 18 will be dismissed. 19 III. Motion for Appointment of Counsel 20 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 21 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent 22 plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern 23 District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain exceptional 24 circumstances the court may request the voluntary assistance of counsel pursuant to section 25 1915(e)(1). Rand, 113 F.3d at 1525. 26 Without a reasonable method of securing and compensating counsel, the court will seek 27 volunteer counsel only in the most serious and exceptional cases. In determining whether 28 “exceptional circumstances exist, the district court must evaluate both the likelihood of success of 2 1 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity 2 of the legal issues involved.” Id. (internal quotation marks and citations omitted). 3 In the present case, the court does not find the required exceptional circumstances. Even if 4 it is assumed that Plaintiff is not well versed in the law and that he has made serious allegations 5 which, if proved, would entitle him to relief, his case is not exceptional. This court is faced with 6 similar cases almost daily. Further, at this early stage in the proceedings, the court cannot make a 7 determination that Plaintiff is likely to succeed on the merits, and based on a review of the record 8 in this case, the court does not find that Plaintiff cannot adequately articulate his claims. Id. For the 9 foregoing reasons, Plaintiff’s motion for the appointment of counsel shall be denied, without 10 prejudice. 11 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a de 12 novo review of this case. Having carefully reviewed the entire file, the undersigned finds the 13 findings and recommendations to be supported by the record and by proper analysis. 14 Accordingly, IT IS HEREBY ORDERED that: 15 1. 16 The findings and recommendations recommending denial of the motions, filed February 9, 2011, is adopted in full; 17 2. Plaintiff’s motions for a temporary restraining order and preliminary injunction filed 18 July 22, 2010, and Plaintiff’s motion for injunctive relief filed August 27, 2010 are 19 DENIED; 20 3. The findings and recommendations recommending dismissal of this action is adopted 21 in part; 22 a. Plaintiff’s motion for judgment on the pleadings is DENIED; 23 b. Within thirty (30) days from the date of service of this order, Plaintiff shall 24 file an amended complaint; 25 c. If Plaintiff fails to file an amended complaint in compliance with this order, 26 the findings and recommendations will be adopted and this action will be 27 dismissed for failure to comply with a court order; and 28 /// 3 1 2 4. Plaintiff’s motion for appointment of counsel filed March 11, 2011, is DENIED, without prejudice. 3 IT IS SO ORDERED. 4 Dated: March 21, 2011 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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