(PC) Maraglino v. Espinosa ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DOROTHY GRACE MARIE 1:20-cv-00825-AWI-GSA-PC MARAGLINO, 12 ORDER DENYING MOTION FOR Plaintiff, APPOINTMENT OF COUNSEL, WITHOUT 13 PREJUDICE v. (ECF No. 13.) 14 J. ESPINOSA, et al., ORDER WITHDRAWING FINDINGS AND 15 RECOMMENDATIONS ISSUED ON Defendants. NOVEMBER 8, 2021 16 (ECF No. 12.) 17 ORDER GRANTING PLAINTIFF UNTIL JANUARY 4, 2022 TO FILE AN AMENDED 18 COMPLAINT 19 DEADLINE: JANUARY 4, 2022 20 21 I. BACKGROUND 22 Dorothy Grace Marie Maraglino (“Plaintiff”) is a state prisoner proceeding pro se and in 23 forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On June 15, 2020, 24 Plaintiff filed the Complaint commencing this action. (ECF No. 1.) 25 On September 13, 2021, the court issued a screening order dismissing the Complaint for 26 failure to state a claim with leave to file an amended complaint within thirty days. (ECF No. 10.) 27 The thirty-day time period expired and Plaintiff has failed to file an amended complaint or 28 respond otherwise to the court’s order. 1 On November 8, 2021, the court issued findings and recommendations, recommending 2 that this case be dismissed for Plaintiff’s failure to comply with the court’s screening order. (ECF 3 No. 12.) On November 18, 2021, Plaintiff filed objections to the findings and recommendations 4 and a motion for appointment of counsel. (ECF No. 13.) 5 II. PLAINTIFF’S OBJECTIONS 6 Plaintiff states that her lack of response to the court’s screening order does not reflect 7 disinterest in prosecuting the case. She reports that in September 2021, she had nightmares about 8 the incident alleged in the Complaint and found it impossible to revisit the details of the events. 9 Plaintiff requests the court not to dismiss this action. 10 The court finds good cause to grant Plaintiff an extension of time to file the amended 11 complaint. However, Plaintiff is forewarned that she must comply with the court’s orders and 12 prosecute her case, or her case will be dismissed. In the future, if Plaintiff requires an extension 13 of time, she is required to file a motion for extension of time before the deadline expires. 14 The court shall withdraw the findings and recommendations issued on November 8, 2021, 15 and Plaintiff shall be granted until January 4, 2022, to file her First Amended Complaint. 16 III. MOTION FOR APPOINTMENT OF COUNSEL 17 Plaintiff has requested court-appointed counsel. Plaintiff does not have a constitutional 18 right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), 19 and the Court cannot require an attorney to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). 20 Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298 21 (1989). However, in certain exceptional circumstances the Court may request the voluntary 22 assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 23 Without a reasonable method of securing and compensating counsel, the Court will seek 24 volunteer counsel only in the most serious and exceptional cases. In determining whether 25 “exceptional circumstances exist, the district court must evaluate both the likelihood of success 26 of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 27 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 28 /// 1 The Court does not find the required exceptional circumstances in this case. At this early 2 stage in the proceedings the court is unable to determine whether Plaintiff is likely to succeed on 3 the merits. Plaintiff’s Complaint was dismissed on September 13, 2021, for failure to state a 4 claim, with leave to amend. To date, Plaintiff has not filed an amended complaint. Thus, there 5 is no complaint on record in this case for which the Court has found cognizable claims. It is too 6 early for service of process, and no other parties have yet appeared. Moreover, the Court is yet 7 to determine whether Plaintiff can adequately articulate her claims. Thus, Plaintiff’s motion for 8 appointment of counsel is premature and therefore shall be denied. Plaintiff is advised that she 9 is not precluded from renewing the motion for appointment of counsel at a later stage of the 10 proceedings. 11 IV. CONCLUSION 12 Based on the foregoing, IT IS HEREBY ORDERED that: 13 1. Plaintiff’s motion for the appointment of counsel is denied, without prejudice; 14 2. The findings and recommendations issued on November 8, 2021, are withdrawn; 15 3. Plaintiff is granted until January 4, 2022, in which to file her First Amended 16 Complaint, pursuant to the court’s screening order of September 13, 2021; and 17 4. Plaintiff’s failure to comply with this order shall result in a recommendation that 18 this case be dismissed in its entirety. 19 IT IS SO ORDERED. 20 21 Dated: November 30, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28