(PC) Bennett v. Asuncion, et al., No. 1:2016cv01749 - Document 32 (E.D. Cal. 2018)

Court Description: ORDER Granting Plaintiff's 31 Motion for an Extension of Time to Respond to Findings and Recommendations; ORDER Denying Plaintiff's Motion for Appointment of Counsel signed by Magistrate Judge Michael J. Seng on 04/06/2018. Objections to F&R due by 5/9/2018.(Flores, E)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 DAVID BENNETT, 11 Plaintiff, 12 v. 13 14 CASE NO. 1:16-cv-01749-AWI-MJS (PC) ORDER GRANTING PLAINTIFF’S MOTION FOR AN EXTENSION OF TIME TO RESPOND TO FINDINGS AND RECOMMENDATION DEBBIE ASUNCION, et al., Defendants. 15 ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL 16 (ECF No. 31) 17 THIRTY DAY (30) DAY DEADLINE 18 19 Plaintiff is a former prisoner proceeding pro se and in forma pauperis in this civil 20 rights action brought pursuant to 42 U.S.C. § 1983. 21 Before the Court is Plaintiff’s April 02, 2018 motion requesting additional time to 22 file objections to the findings and recommendations and requesting appointment of 23 counsel. (ECF No. 31.) 24 I. 25 Extension of time. Plaintiff seeks an extension of time of time to file objections to this Court’s findings 26 and recommendation (ECF No. 30) to dismiss first amended complaint without leave to 27 amend for failure to state a claim. Plaintiff states that he has not been able to access his 28 1 legal files because he has been placed in Atascadero State Hospital as a mentally 2 disordered offender. 3 Good cause having been presented, Plaintiff’s motion will be granted and Plaintiff 4 will be afforded thirty days from the date of service of this order to file objections. 5 II. Appointment of Counsel 6 Plaintiff does not have a constitutional right to appointed counsel in this action, 7 Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an 8 attorney to represent Plaintiff pursuant to 28 U.S.C. ' 1915(e)(1), Mallard v. United States 9 District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). In certain 10 exceptional circumstances the court may request the voluntary assistance of counsel 11 pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. However, without a reasonable 12 method of securing and compensating counsel, the Court will seek volunteer counsel 13 only in the most serious and exceptional cases. In determining whether exceptional 14 circumstances exist, the district court must evaluate both the likelihood of success of the 15 merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 16 complexity of the legal issues involved. Id. (internal quotation marks and citations 17 omitted). 18 In the present case, the Court does not find the required exceptional 19 circumstances. Even if it is assumed that Plaintiff is not well versed in the law and that he 20 has made serious allegations which, if proved, would entitle him to relief, his case is not 21 exceptional. This Court is faced with similar cases almost daily. Further, at this early 22 stage in the proceedings, the Court cannot make a determination that Plaintiff is likely to 23 succeed on the merits. And, based on a review of the record in this case, even though 24 the issues are complex, the court does not find that Plaintiff cannot adequately articulate 25 his claims. Id. 26 For the foregoing reasons, Plaintiff=s motion for the appointment of counsel is 27 denied, without prejudice. 28 2 1 III. Conclusion and Order 2 Based on the foregoing, it is HEREBY ORDERED that: 3 1. Plaintiff’s motion (ECF No. 31) is GRANTED insofar as it requests an 4 extension of time. Plaintiff shall have thirty days from the date of service of 5 this order to file objections to the findings and recommendation. 6 2. Plaintiff’s motion (ECF No. 31) is DENIED in all other respects. 7 8 IT IS SO ORDERED. 9 10 11 Dated: April 6, 2018 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3