(PC) Sanders v. Grimes ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TROY ALEXANDER SANDERS, Case No. 1:18-cv-01285-AWI-JLT (PC) 12 Plaintiff, ORDER WITHDRAWING FINDINGS AND RECOMMENDATIONS, DENYING 13 v. MOTION TO APPOINT COUNSEL, AND 14 GRIMES, et al., DIRECTING SERVICE OF COPY OF MOTION TO DISMISS 15 Defendants. (Docs. 50, 51) 16 17 On December 11, 2020, Defendants filed a motion to dismiss Plaintiff’s complaint. (Doc. 18 45.) Plaintiff failed to file an opposition or a statement of non-opposition to Defendants’ motion 19 in accordance with Local Rule 230(l). Therefore, the Court ordered Plaintiff to show cause, 20 within 21 days, why this action should not be dismissed for Plaintiff’s failure to prosecute. (Doc. 21 47.) Plaintiff failed to respond to the order to show cause within the time provided. Accordingly, 22 the Court issued findings and recommendations to dismiss this action for failure to prosecute. 23 (Doc. 50.) 24 Plaintiff filed objections to the findings and recommendations. (Doc. 51.) Therein, 25 Plaintiff contends that he never received Defendants’ motion to dismiss, (id. at 1), but he does not 26 explain why he failed to respond to the Court’s order to show cause. Nevertheless, in an 27 abundance of caution, the Court will withdraw its findings and recommendations and grant 1 Plaintiff also requests the appointment of counsel. (Doc. 51 at 2.) Plaintiffs do not have a 2 constitutional right to appointed counsel in section 1983 actions, Rand v. Rowland, 113 F.3d 3 1520, 1525 (9th Cir. 1997), and the Court cannot require an attorney to represent a party under 28 4 U.S.C. § 1915(e)(1), see Mallard v. U.S. Dist. Court, 490 U.S. 296, 304-05 (1989). However, in 5 “exceptional circumstances,” the Court may request the voluntary assistance of counsel pursuant 6 to section 1915(e)(1). Rand, 113 F.3d at 1525. 7 Given that the Court has no reasonable method of securing and compensating counsel, the 8 Court will seek volunteer counsel only in extraordinary cases. In determining whether 9 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 10 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 11 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 12 In the present case, the Court does not find the requisite exceptional circumstances. 13 Although Plaintiff contends that he has limited access to a law library because he is housed at a 14 conservation camp (Doc. 51 at 2), his situation is not exceptional. Many prisoners are housed at 15 conservation camps, and they too must litigate their cases without the assistance of counsel. See, 16 e.g., Benitez v. Sierra Conservation Ctr., Warden, No. 1:21-cv-00370-BAM, 2021 WL 1164075, 17 at *1 (E.D. Cal. 2021). In addition, at this stage in the proceedings, the Court cannot make a 18 determination on whether Plaintiff is likely to succeed on the merits; and, based on a review of 19 the records in this case, the Court does not find that Plaintiff is unable adequately articulate his 20 claims. Accordingly, the Court ORDERS: 21 1. The findings and recommendations to dismiss this action for failure to prosecute (Doc. 22 50) are WITHDRAWN; 23 2. The Clerk’s Office shall serve copies of Defendants’ motion to dismiss and supporting 24 request for judicial notice (Docs. 45, 49) on Plaintiff; 25 3. Plaintiff shall have 30 days from the date of service of this order to file an opposition 26 or a statement of non-opposition to Defendants’ motion to dismiss; and, 27 4. Plaintiff’s motion for appointment of counsel (Doc. 51) is DENIED without prejudice. 1 dismissed for failure to prosecute and to obey court orders. 2 IT IS SO ORDERED. 3 4 Dated: May 18, 2021 _ /s/ Jennifer L. Thurston CHIEF UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27