(PC) Nieto v. Gordon ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN MOISES NIETO, Case No. 1:20-cv-00291-DAD-JLT (PC) 12 Plaintiff, ORDER VACATING FINDINGS AND RECOMMENDATIONS AND DENYING 13 v. MOTION TO APPOINT COUNSEL 14 WARDEN GORDON, et al., (Docs. 26, 27) 15 Defendants. 16 17 On February 3, 2021, the Court issued an Order Adopting Findings and Recommendations 18 and Dismissing Non-cognizable Claims. (Doc. 17.) The order was served on Plaintiff by U.S. 19 Mail. However, on February 22, 2021, the U.S. Postal Service returned the mail as 20 “Undeliverable, Return to Sender, Refused, Unable to Forward.” Under the Local Rules, if mail 21 directed to a pro se plaintiff at his address of record is returned by the U.S. Postal Service and the 22 plaintiff fails to update his address within sixty-three days, the Court may dismiss his action for 23 failure to prosecute. L.R. 183(b). 24 After sixty-three days passed without notice of a change of address from Plaintiff, the 25 Court issued findings and recommendations to dismiss the action for failure to prosecute. (Doc. 26 26.) Plaintiff filed objections to the findings and recommendations, advising that he did not 27 receive a copy of the order and that he has been at the same address for over a year. Accordingly, 28 the Court VACATES its findings and recommendations. (Doc. 26.) 1 In his objections, Plaintiff requests the appointment of counsel. (Doc. 27 at 2.) Plaintiff 2 does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 3 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an attorney to represent Plaintiff 4 pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 5 296, 298 (1989). The Court may request the voluntary assistance of counsel under section 6 1915(e)(1). Rand, 113 F.3d at 1525. However, without a reasonable method of securing and 7 compensating counsel, the Court will seek volunteer counsel only in the most serious and 8 exceptional cases. In determining whether exceptional circumstances exist, the district court must 9 evaluate both the likelihood of success of the merits and the ability of the plaintiff to articulate his 10 claims pro se in light of the complexity of the legal issues involved. Id. 11 In the present case, the Court does not find the required exceptional circumstances. Even 12 assuming that Plaintiff is not well-versed in the law and that he has made serious allegations, 13 which, if proved, would entitle him to relief, his case is not exceptional. This Court is faced with 14 similar cases almost daily. At this early stage in the proceedings, the Court cannot determine that 15 Plaintiff is likely to succeed on the merits. Moreover, based on a review of the record, the Court 16 finds that Plaintiff can articulate his claims adequately. Id. 17 Accordingly, the Court DENIES Plaintiff’s request for court-appointed counsel. (Doc. 18 27.) 19 IT IS SO ORDERED. 20 21 Dated: June 9, 2021 _ /s/ Jennifer L. Thurston CHIEF UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28