(TEMP)(PC) Flournoy v. Bobbala, et al, No. 2:2013cv01867 - Document 35 (E.D. Cal. 2015)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 11/10/15 denying 30 Motion to Appoint Counsel and granting 31 Motion for Extension of time. Plaintiff is granted 30 days from the date of service of this o rder in which to file and serve a response to defendants' motion to dismiss. Any reply shall be filed and served in accordance with Local Rule 230 (l). Also, RECOMMENDING that plaintiff's motion for preliminary injunctive relief 24 be denied as moot. MOTION for PRELIMINARY INJUNCTION 24 referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES FLOURNOY, 12 13 No. 2:13-cv-1867 JAM KJN P (TEMP) Plaintiff, v. ORDER AND 14 MANJULA BOBBALA, et al., 15 Defendants. FINDINGS AND RECOMMENDATIONS 16 17 Plaintiff is a state prisoner, proceeding pro se, with a civil rights action. Pending before 18 the court is plaintiff’s motion for preliminary injunctive relief, plaintiff’s motion for appointment 19 of counsel, and plaintiff’s motion for an extension of time to file an opposition to defendants’ 20 motion to dismiss. 21 First, as to plaintiff’s motion for preliminary injunctive relief, at the time plaintiff filed his 22 motion he was incarcerated at California State Prison, Sacramento. On September 21, 2015, 23 plaintiff filed a notice of change of address in this case to reflect his recent transfer to the 24 California Substance Abuse Treatment Facility. Thus, plaintiff is no longer subject to the alleged 25 unlawful conditions he complained of at California State Prison, Sacramento. See Weinstein v. 26 Bradford, 423 U.S. 147, 149 (1975). Nor does plaintiff’s complaint fall within the “capable of 27 repetition, yet evading review” exception to the mootness doctrine. See Williams v. Alioto, 549 28 F.2d 136, 143 (9th Cir. 1977) (“A mere speculative possibility of repetition is not sufficient. 1 1 There must be a cognizable danger, a reasonable expectation, of recurrence for the repetition 2 branch of the mootness exception to be satisfied.”). Accordingly, the court recommends denying 3 plaintiff’s motion for preliminary injunctive relief as moot. Turning now to plaintiff’s motion for appointment of counsel, district courts lack authority 4 5 to require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States 6 Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an 7 attorney to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 8 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th 9 Cir.1990). When determining whether “exceptional circumstances” exist, the court must consider 10 plaintiff's likelihood of success on the merits as well as the ability of the plaintiff to articulate his 11 claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 12 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). 13 The burden of demonstrating exceptional circumstances is on the plaintiff. Id. 14 Plaintiff asserts that he requires appointment of counsel because he is indigent and has a 15 limited education. While the court sympathizes with these challenges, they are insufficient to 16 merit the appointment of counsel at this time. Circumstances common to most prisoners, such as 17 lack of legal education and limited law library access, do not establish exceptional circumstances 18 that warrant a request for voluntary assistance of counsel. Accordingly, the court denies 19 plaintiff’s motion for appointment of counsel. 20 Finally, plaintiff has requested an extension of time to file an opposition to the motion to 21 dismiss filed on behalf of defendants Bobbala, Daye, Nangalama, and Sahota. Good cause 22 appearing, the court grants plaintiff’s request. 23 Accordingly, IT IS HEREBY ORDERED that: 24 1. Plaintiff’s motion for the appointment of counsel (Doc. No. 30) is denied without 25 prejudice; 2. Plaintiff’s motion for an extension of time (Doc. No. 31) is granted; and 26 27 ///// 28 ///// 2 1 3. Plaintiff is granted thirty days from the date of service of this order in which to file and 2 serve a response to defendants’ motion to dismiss. Any reply shall be filed and served in 3 accordance with Local Rule 230(l). 4 5 IT IS HEREBY RECOMMENDED that plaintiff’s motion for preliminary injunctive relief (Doc. No. 24) be denied as moot. 6 These findings and recommendations are submitted to the United States District Judge 7 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 8 after being served with these findings and recommendations, any party may file written 9 objections with the court and serve a copy on all parties. Such a document should be captioned 10 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 11 objections shall be filed and served within fourteen days after service of the objections. The 12 parties are advised that failure to file objections within the specified time may waive the right to 13 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 14 Dated: November 10, 2015 15 16 17 18 flou1867.31+36opp 19 20 21 22 23 24 25 26 27 28 3

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