(PC) Etuate Sekona v. Zepp ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ETUATE SEKONA, Case No. 1:18-cv-01065-LJO-BAM (PC) 12 Plaintiff, ORDER DENYING MOTION TO APPOINT COUNSEL 13 v. (ECF No. 20) 14 ZEPP, et al., ORDER GRANTING SECOND MOTION 15 Defendants. FOR EXTENSION OF TIME TO FILE FIRST AMENDED COMPLAINT 16 (ECF No. 21) 17 THIRTY (30) DAY DEADLINE 18 19 Plaintiff Etuate Sekona (“Plaintiff”) is a state prisoner proceeding pro se and in forma 20 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On June 11, 2019, the Court 21 screened Plaintiff’s complaint and granted Plaintiff leave to file a first amended complaint within 22 thirty (30) days. (ECF No. 16.) On July 1, 2019, the Court issued an order denying Plaintiff’s 23 motion to appoint counsel and granting Plaintiff’s request for a thirty-day extension of time to file 24 his amended complaint. (ECF No. 19.) 25 Currently before the Court are Plaintiff’s renewed motion to appoint counsel, (ECF No. 26 20), and second motion for an extension of time to file a first amended complaint, (ECF No. 21), 27 filed August 18, 2019. As in his earlier motion, Plaintiff argues that counsel should be appointed 28 to represent him in this case because he received a TABE score of 2.3 in English, and he has a 1 limited knowledge of the English language. (ECF No. 20.) Plaintiff also states that he is 2 suffering from brain damages that cause confusion and dizziness. (Id.) Thus, Plaintiff requests 3 another thirty-day extension of time to file his amended complaint, so his brain injury may heal or 4 so he can find counsel. (ECF No. 21.) 5 As Plaintiff has been informed, he does not have a constitutional right to appointed 6 counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on 7 other grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998), and the court cannot require an attorney to 8 represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. 9 of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court may 10 request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 11 1525. 12 Without a reasonable method of securing and compensating counsel, the Court will seek 13 volunteer counsel only in the most serious and exceptional cases. In determining whether 14 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 15 the 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 omitted). 17 The Court has considered Plaintiff’s renewed request, but does not find the required 18 exceptional circumstances. Even if it is assumed that Plaintiff is not well versed in the law and 19 that he has made serious allegations which, if proved, would entitle him to relief, his case is not 20 exceptional. This Court is faced with similar cases filed by prisoners with limited literacy, 21 limited knowledge of English, and facing serious medical issues who are proceeding pro se and in 22 forma pauperis almost daily. These prisoners also must conduct legal research and prosecute 23 claims without the assistance of counsel. 24 Furthermore, at this stage in the proceedings, the Court cannot make a determination that 25 Plaintiff is likely to succeed on the merits, and based on a review of the record in this case, the 26 Court does not find that Plaintiff cannot adequately articulate his claims. 27 However, based on Plaintiff’s allegations regarding his limited English proficiency and 28 his ongoing health issues the Court finds good cause to grant a second thirty-day extension of 1 time for Plaintiff to file his first amended complaint. Fed. R. Civ. P. 6(b). 2 Accordingly, IT IS HEREBY ORDERED as follows: 3 1. Plaintiff’s motion to appoint counsel, (ECF No. 20), is DENIED, without prejudice; 4 2. Plaintiff’s motion for extension of time to file a first amended complaint, (ECF No. 5 21), is GRANTED; 6 3. The Clerk’s Office shall send Plaintiff a complaint form; 7 4. Within thirty (30) days from the date of service of this order, Plaintiff shall file an 8 amended complaint curing the deficiencies identified by the Court in the June 10, 9 2019 screening order or file a notice of voluntary dismissal; and 10 5. If Plaintiff fails to file an amended complaint in compliance with this order, the 11 Court will recommend dismissal of this action, with prejudice, for failure to obey 12 a court order and for failure to state a claim. 13 IT IS SO ORDERED. 14 15 Dated: August 19, 2019 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28