(PC) Neale v. Sherman et al, No. 1:2018cv00342 - Document 18 (E.D. Cal. 2019)

Court Description: ORDER DENYING 17 Motion to Appoint Counsel and ORDER GRANTING an Extension of Time to File Objections to Findings and Recommendations, signed by Magistrate Judge Barbara A. McAuliffe on 4/19/19. (21-Day Deadline) (Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 No.: 1:18-cv-00342-DAD-BAM (PC) JOSEPH NEALE, JR., ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL AND GRANTING AN EXTENSION OF TIME TO FILE OBJECTIONS TO FINDINGS AND RECOMMENDATIONS Plaintiff, v. STU SHERMAN, et al., (ECF No. 17) Defendant(s). TWENTY-ONE (21) DAY DEADLINE 16 17 18 19 20 Plaintiff Joseph Neale, Jr. is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. ' 1983. On February 6, 2019, the Court issued findings and recommendations to dismiss this 21 action, with prejudice, for the failure to state a claim upon which relief may be granted. (ECF 22 No. 14.) Plaintiff was given fourteen (14) days to file objections to those findings and 23 recommendations. (Id.) On March 6, 2019, the Court granted Plaintiff’s motion for extension of 24 time to file objections. (ECF Nos. 15, 16.) Plaintiff was granted 30 additional days from the date 25 of service of the order to file his objections to the February 6, 2019 findings and 26 recommendations. (ECF No. 16.) 27 28 Currently before the Court is Plaintiff’s motion for appointment of counsel, filed on April 12, 2019. (ECF No. 17.) Plaintiff contends that the Court should appoint counsel to represent 1 1 him because, due to the disruption at California Substance Abuse Treatment Facility and State 2 Prison, Corcoran caused by a mass institutional search and the unexpected death of an inmate in 3 Plaintiff’s dorm, Plaintiff has not been able to concentrate and perform the necessary research and 4 investigation needed to organize his thoughts and write and file objections to the findings and 5 recommendations. 6 However, 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 any attorney 8 to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1), Mallard v. United States District Court 9 for the Southern District of Iowa, 490 U.S. 296, 298 (1989). Nevertheless, in certain exceptional 10 circumstances, the Court may request the voluntary assistance of counsel pursuant to section 11 1915(e)(1). Rand, 113 F.3d at 1525. Without a reasonable method of securing and compensating 12 counsel, the court will seek volunteer counsel only in the most serious and exceptional cases. In 13 determining whether “exceptional circumstances exist, the district court must evaluate both the 14 likelihood of success on the merits [and] the ability of the [plaintiff] to articulate his claims pro se 15 in light of the complexity of the legal issues involved.” Id. (internal quotation marks and citations 16 omitted). “Neither of these considerations is dispositive and instead must be viewed together.” 17 Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). 18 Initially, the Court notes that Plaintiff has failed to demonstrate that it is likely that he will 19 succeed on the merits of his claims. Further, the record reflects that Plaintiff can adequately 20 articulate his claims and that the issues raised in this case are not particularly complex. 21 Therefore, the Court fails to find the exceptional circumstances necessary to justify granting a 22 request for voluntary assistance of counsel. Accordingly, the Court denies Plaintiff’s motion for 23 appointment of counsel. 24 Nevertheless, in light of Plaintiff’s pro se status and in order to allow time for Plaintiff to 25 receive the Court’s order, the Court finds that it is in the interests of justice to grant Plaintiff an 26 extension of twenty-one (21) days to file his objections to the February 6, 2019 findings and 27 recommendations. Any future requests for an extension of time should present good cause, and 28 requests based on the same grounds presented here will not be considered sufficient good cause 2 1 for a further extension of this deadline. 2 Based on the foregoing, it is HEREBY ORDERED that: 3 1. Plaintiff’s motion for appointment of counsel, (ECF No. 17), is DENIED; 4 2. In the interests of justice, Plaintiff is granted an extension of time to file objections 5 6 to the February 6, 2019 findings and recommendations; and 3. Plaintiff shall file his objections to the February 6, 2019 findings and 7 recommendations within twenty-one (21) days from the date of service of this 8 order. 9 10 11 12 IT IS SO ORDERED. Dated: /s/ Barbara April 19, 2019 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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