(PC) Coleman v. Lopez ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL JOHN COLEMAN, No. 1:20-cv-00113-NONE-GSA (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS IN FULL 13 v. (Doc. Nos. 22, 26) 14 T. LOPEZ, et al., 15 Defendants. 16 17 18 Plaintiff Michael John Coleman is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a 20 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On January 31, 2020, the assigned magistrate judge screened plaintiff’s complaint and 22 dismissed it for failure to state a claim, with leave to amend. (Doc. No. 10.). On August 24, 23 2020, plaintiff filed his first amended complaint. (Doc. No. 22.) On October 2, 2020, the 24 assigned magistrate judge issued findings and recommendations recommending that this case be 25 dismissed for failure to state a claim under § 1983, without prejudice to the filing of a petition for 26 writ of habeas corpus. (Doc. No. 26.) The findings and recommendations were served on the 27 parties and contained notice that objections thereto were due within fourteen (14) days after 28 service. (Id. at 5.) Plaintiff filed objections on October 28, 2020. (Doc. No. 27.) 1 Plaintiff objects to the denial of his motion for appointment of counsel, asserting that he 2 | needs a lawyer because he is a mental health patient, has limited access to the law library, and has 3 | difficulty conducting legal research. (/d. at 1-2.) Plaintiff does not have a constitutional right to 4 | appointed counsel but only in certain exceptional circumstances may the court request the 5 | voluntary assistance of counsel. See Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997). In 6 | determining whether exceptional circumstances exist, the court must evaluate, in part, the 7 | likelihood of success on the merits. Jd. As explained by the magistrate judge, plaintiff's § 1983 8 | claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994), and Edwards v. Balisok, 520 U.S. 9 | 641 (1997), because the first amended complaint does not contain any allegations to show that the 10 | prison administrative decision resulting in the forfeiture of credits has been reversed, expunged, 11 | declared invalid, or called into question by a writ of habeas corpus. (Doc. No. 26 at 5-6.) 12 | Because plaintiff is unlikely to succeed on the merits of this action, the court does not find the 13 || requisite exceptional circumstances and thus his motion for appointment of counsel is denied. 14 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 304, this 15 || court has conducted a de novo review of this case. Having carefully reviewed the entire file, 16 | including plaintiffs objections, the court finds the findings and recommendations to be supported 17 || by the record and proper analysis. Accordingly, 18 1. The findings and recommendations issued by the magistrate judge on October 2, 19 | 2020 (Doc. No. 26), are adopted in full; 20 2. Plaintiff's motion for appointment of counsel is denied; 21 3. This case is dismissed due to plaintiff’s failure to state a claim under § 1983, 22 | without prejudice to his filing of a petition for writ of habeas corpus; and 23 4. The Clerk of Court is directed to assign a district judge to this case for the purpose 24 | of closing the case and then to close the case. 25 | IT IS SO ORDERED. me □ 26 Li fa £5 Dated: _ January 28, 2021 See 1" Sage 27 UNITED STATES DISTRICT JUDGE 28