(PC) Serna v. Sullivan ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 NORBERTO SERNA, 1:18-cv-01650-LJO-GSA-PC 12 Plaintiff, ORDER DENYING MOTION FOR 13 APPOINTMENT OF COUNSEL v. 14 ORDER WITHDRAWING FINDINGS AND SULLIVAN, et al., RECOMMENDATIONS ENTERED ON 15 DECEMBER 5, 2019 Defendants. (ECF No. 16.) 16 ORDER GRANTING PLAINTIFF EXTENSION 17 OF TIME TO FILE AN AMENDED COMPLAINT 18 THIRTY-DAY DEADLINE 19 20 I. BACKGROUND 21 Norberto Serna (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 22 with this civil rights action pursuant to 42 U.S.C. § 1983 and Title II of the Americans with 23 Disabilities Act (ADA), 42 U.S.C. § 12132. On June 11, 2018, Plaintiff filed the Complaint 24 commencing this action. (ECF No. 1.) 25 On December 5, 2019, the court entered findings and recommendations to dismiss this 26 case for Plaintiff’s failure to state a claim based upon Plaintiff’s failure to file an amended 27 28 1 complaint pursuant to the court’s order of September 27, 2019. (ECF No. 16.) On December 2 19, 2019, Plaintiff filed objections to the findings and recommendations. (ECF No. 17.) 3 II. MOTION FOR APPOINTMENT OF COUNSEL 4 In his objections, Plaintiff requests appointment of counsel asserting that he is 5 uneducated, can barely read and write in Spanish, and cannot speak English well enough to 6 litigate this case. Plaintiff explains that another inmate is assisting him. 7 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 8 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an attorney to 9 represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court 10 for the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional 11 circumstances the Court may request the voluntary assistance of counsel pursuant to section 12 1915(e)(1). Rand, 113 F.3d at 1525. 13 Without a reasonable method of securing and compensating counsel, the Court will seek 14 volunteer counsel only in the most serious and exceptional cases. In determining whether 15 “exceptional circumstances exist, the district court must evaluate both the likelihood of success 16 of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 17 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 18 In the present case, the Court does not find the required exceptional circumstances. The 19 fact that Plaintiff is uneducated and cannot speak English well does not make Plaintiff’s case 20 exceptional under the law. At this early stage in the proceedings the court cannot make a 21 determination that Plaintiff is likely to succeed on the merits. Plaintiff’s Complaint was 22 dismissed on September 27, 2019, for failure to state a claim and violation of Rule 18, with leave 23 to amend. To date, Plaintiff has not filed an amended complaint. Thus, there is no complaint on 24 record in this case for which the Court has found cognizable claims. It is too early for service of 25 process, and no other parties have yet appeared. Moreover, based on the record in this case the 26 Court finds that Plaintiff can adequately articulate his claims. Therefore, Plaintiff’s motion for 27 appointment of counsel shall be denied, without prejudice to renewing the motion at a later stage 28 of the proceedings. 1 /// 2 /// 3 III. WITHDRAWAL OF FINDINGS AND RECOMMENDATIONS; EXTENSION OF 4 TIME 5 In light of Plaintiff’s circumstances, the court shall withdraw the findings and 6 recommendations entered on December 5, 2019, and grant Plaintiff an extension of time to file 7 the First Amended Complaint. The Clerk of Court shall be directed to send Plaintiff a civil rights 8 complaint form. Plaintiff shall be granted thirty more days in which to file the First Amended 9 Complaint, pursuant to the order issued on September 27, 2019. 10 III. CONCLUSION 11 In light of the foregoing, IT IS HEREBY ORDERED that: 12 1. Plaintiff’s motion for appointment of counsel is DENIED; 13 2. The findings and recommendations entered on December 5, 2019, are 14 WITHDRAWN; 15 3. The Clerk of Court shall SEND Plaintiff a civil rights complaint form; 16 4. Plaintiff is GRANTED thirty days from the date of service of this order in which 17 to file a First Amended Complaint pursuant to the court’s order of September 27, 18 2019; and 19 5. Plaintiff’s failure to comply with this order may result in the dismissal of this 20 action, with prejudice, for failure to state a claim. 21 IT IS SO ORDERED. 22 23 Dated: January 6, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28