(PC) Lynch v. Doe ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONEY LYNCH, Case No. 1:09-cv-02097-AWI-JDP 12 Plaintiff, ORDER DENYING MOTIONS TO VACATE AND TO APPOINT COUNSEL 13 v. ECF Nos. 75, 76 14 JOHN OR JANE DOE, et al., 15 Defendants. 16 17 18 Plaintiff, a state prisoner without counsel, filed the pending motion in his civil rights case 19 that was closed on February 27, 2015. Plaintiff’s complaint was dismissed for failure to state a 20 claim. ECF No. 58. On August 17, 2015, plaintiff filed an untimely motion for an extension of 21 time to file his appeal. ECF No. 60. Plaintiff’s motion was denied on September 4, 2015. ECF 22 No. 61. The Ninth Circuit remanded the order to allow the district court to consider whether the 23 motion included a timely motion to reopen. ECF No. 63. Ultimately, the district court ruled that 24 the motion to reopen was untimely, ECF No. 72, and the appeal was dismissed on March 14, 25 2017. ECF No. 73. Two years later, plaintiff filed the instant motions. 26 In his motion to vacate, ECF No. 75, plaintiff asks the court to vacate its order denying an 27 extension of time to restore his opportunity to appeal. Plaintiff states that he has been taking 28 medicine that caused him confusion and mental lapses regarding procedural requirements. See id. 1 | While Iam sympathetic to plaintiff's condition, I cannot find that his motion is supported by good 2 | cause to vacate the orders entered by the court in this case. Plaintiff also moves for the 3 | appointment of counsel, ECF No. 76. Plaintiff argues that his mental health issues interfere with 4 | his ability to litigate. See id. Plaintiff fails to state a basis for providing the extraordinary remedy 5 | of having the court seek voluntary assistance of counsel.! 6 For these reasons, I hereby order that: 7 1. Plaintiff's motion to vacate, ECF No. 75 is denied; and 8 2. Plaintiff's motion for counsel, ECF No. 76 is denied. 9 10 IT IS SO ORDERED. 11 Dated: _ September 25, 2019 12 UNIT#D STATES MAGISTRATE JUDGE 13 14 15 No. 204 16 17 18 19 20 21 22 ' Plaintiff does not have a constitutional right to appointed counsel in this action, see Rand v. 24 | Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court lacks the authority to require an attorney to represent plaintiff. See Mallard v. U.S. District Court for the Southern District of 25 Towa, 490 U.S. 296, 298 (1989). The court may request the voluntary assistance of counsel. See 26 28 U.S.C. § 1915(e)(1). However, without a means to compensate counsel, the court will seek volunteer counsel only in exceptional circumstances. In determining whether such circumstances 27 | exist, “the district court must evaluate both the likelihood of success on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues 28 | involved.” Rand, 113 F.3d at 1525 (internal quotation marks and citations omitted).