(PC) Page v. CDCR Medical ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PATTI M. PAGE, Case No. 1:20-cv-00917-BAM (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL 13 v. (ECF No. 12) 14 CDCR MEDICAL, et al., ORDER TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED 15 Defendants. FOR FAILURE TO OBEY A COURT ORDER AND FAILURE TO PROSECUTE 16 (ECF No. 8) 17 THIRTY (30) DAY DEADLINE 18 19 I. Introduction 20 Plaintiff Patti M. Page (“Plaintiff”) is a state prisoner proceeding pro se and in forma 21 pauperis in this civil rights action under 42 U.S.C. § 1983. This matter was referred to a United 22 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 23 On August 14, 2020, the Court issued a screening order granting Plaintiff leave to file a 24 first amended complaint within thirty (30) days. (ECF No. 8.) The Court expressly warned 25 Plaintiff that the failure to file an amended complaint in compliance with the Court’s order would 26 result in a recommendation for dismissal of this action, with prejudice, for failure to obey a court 27 order and for failure to state a claim. (Id. at 9.) 28 /// 1 On September 23, 2020, Plaintiff filed a motion to appoint counsel. (ECF No. 12.) 2 Plaintiff has not otherwise communicated with the Court, and the deadline for Plaintiff to file a 3 first amended complaint or a notice of voluntary dismissal has expired. 4 II. Motion to Appoint Counsel 5 In her motion for counsel, Plaintiff requests help in finding legal representation to help her 6 with this case. (ECF No. 12.) Plaintiff states that she is unable to find representation herself due 7 to her housing, having not finished high school, and not having money. Plaintiff also requests the 8 dates on which the Court sees civil rights cases. (Id.) 9 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 10 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 952, 954 11 n.1 (9th Cir. 1998), and the court cannot require an attorney to represent plaintiff pursuant to 28 12 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 298 13 (1989). However, in certain exceptional circumstances the court may request the voluntary 14 assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 15 Without a reasonable method of securing and compensating counsel, the Court will seek 16 volunteer counsel only in the most serious and exceptional cases. In determining whether 17 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 18 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 19 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 20 The Court has considered Plaintiff’s request, but does not find the required exceptional 21 circumstances. Even if it is assumed that Plaintiff is not well versed in the law and that she has 22 made serious allegations which, if proved, would entitle her to relief, her case is not exceptional. 23 This Court is faced with similar cases filed by prisoners who are proceeding pro se almost daily. 24 Many of these prisoners also have limited education and funds. These litigants also must conduct 25 legal research and litigate their cases without the assistance of counsel. 26 Furthermore, at this stage in the proceedings, the Court cannot make a determination that 27 Plaintiff is likely to succeed on the merits. Plaintiff’s complaint was screened and found not to 28 state any cognizable claims. As Plaintiff has failed to file an amended complaint, the Court 1 cannot find that Plaintiff has shown a likelihood of success on the merits. Finally, based on a 2 review of the record in this case, the Court does not find that Plaintiff cannot adequately articulate 3 her claims. 4 As to Plaintiff’s request for the dates on which the Court sees civil rights cases, Plaintiff is 5 informed that the Court does not regularly hold court dates for civil rights cases. Unless the 6 Court orders otherwise, all motions in cases where one party is incarcerated and proceeding pro 7 se are submitted on the record without oral argument. See Local Rule 230(l). 8 III. Conclusion and Order 9 Although the deadline for Plaintiff to file an amended complaint or notice of voluntary 10 dismissal has expired, Plaintiff’s motion to appoint counsel indicates that she remains involved in 11 litigating this action. In light of Plaintiff’s pro se status, the Court finds it appropriate to grant 12 Plaintiff a final opportunity to comply with the Court’s August 14, 2020 screening order. 13 Accordingly, it is HEREBY ORDERED that Plaintiff shall show cause in writing, within 14 thirty (30) days of service of this order, why this action should not be dismissed for failure to 15 comply with the Court’s August 14, 2020 order and failure to prosecute. Plaintiff can comply 16 with this order to show cause by filing a first amended complaint curing the deficiencies 17 identified by the Court in the August 14, 2020 order or filing a notice of voluntary dismissal. The 18 failure to comply with this order will result in the dismissal of this action, with prejudice, 19 for failure to obey a court order, failure to prosecute, and failure to state a claim. 20 IT IS SO ORDERED. 21 22 Dated: September 29, 2020 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28