(PC) Williams v. California Department of Corrections ( 2020 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 SYLESTER WILLIAMS, 1:19-cv-00250-LJO-GSA-PC 10 Plaintiff, ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL 11 vs. (ECF No. 41.) 12 CALIFORNIA DEPARTMENT OF ORDER GRANTING MOTION FOR CORRECTIONS, et al., EXTENSION OF TIME TO FILE 13 FOURTH AMENDED COMPLAINT Defendants. 14 THIRTY-DAY DEADLINE 15 16 I. BACKGROUND 17 Sylester Williams (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 18 with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint 19 commencing this action on January 3, 2019, at the United States District Court for the Northern 20 District of California. (ECF No. 1.) On February 21, 2019, the case was transferred to this court. 21 (ECF No. 12.) 22 On March 22, 2019, Plaintiff filed the First Amended Complaint as a matter of course. 23 (ECF No. 23.) On June 28, 2019, Plaintiff lodged a proposed Second Amended Complaint, and 24 on July 26, 2019, Plaintiff lodged a proposed Third Amended Complaint. (ECF Nos. 32, 36.) 25 On December 19, 2019, the court screened the First Amended Complaint and dismissed it for 26 failure to state a claim, with leave to amend. (ECF No. 40.) Plaintiff’s lodged complaints were 27 stricken from the record. (Id.) Plaintiff was granted thirty days in which to file a Fourth 28 Amended Complaint. (Id.) 1 On December 19, 2019, Plaintiff filed a motion to appoint counsel. (ECF No. 41.) On 2 January 2, 2020, Plaintiff filed a motion for extension of time to file the Fourth Amended 3 Complaint. (ECF No. 42.) Plaintiff’s motions are now before the court. 4 II. MOTION FOR APPOINTMENT OF COUNSEL 5 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 6 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to 7 represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court 8 for the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in 9 certain exceptional circumstances the court may request the voluntary assistance of counsel 10 pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 11 Without a reasonable method of securing and compensating counsel, the court will seek 12 volunteer counsel only in the most serious and exceptional cases. In determining whether 13 “exceptional circumstances exist, the district court must evaluate both the likelihood of success 14 of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 15 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 16 In the present case, the court does not find the required exceptional circumstances. At this 17 early stage in the proceedings, the court cannot make a determination that Plaintiff is likely to 18 succeed on the merits. Plaintiff’s First Amended Complaint was dismissed on December 19, 19 2019, with leave to amend. To date, Plaintiff has not filed an amended complaint. Thus, there 20 is no complaint on record in this case for which the Court has found cognizable claims. It is too 21 early for service of process, and no other parties have yet appeared. Plaintiff’s due process claim 22 is not complex. Moreover, after a review of the record in this case, the Court finds that Plaintiff 23 can adequately articulate his claims and respond to the Court’s orders. Thus, the court shall deny 24 the motion for appointment of counsel. Plaintiff is advised that he is not precluded from renewing 25 the motion for appointment of counsel at a later stage of the proceedings. 26 III. MOTION FOR EXTENSION OF TIME 27 Plaintiff seeks an extension of time to file the Fourth Amended Complaint. The Court 28 finds good cause to grant Plaintiff an extension of time. Plaintiff shall be granted thirty days 1 from the date of service of this order in which to file the Fourth Amended Complaint, pursuant 2 to the Court’s screening order issued on December 19, 2019. 3 IV. CONCLUSION 4 Based on the foregoing, IT IS HEREBY ORDERED that: 5 1. Plaintiff’s motion for appointment of counsel, filed on December 19, 2019, is 6 DENIED, without prejudice; 7 2. Plaintiff’s motion for extension of time to file the Fourth Amended Complaint, 8 filed on January 2, 2020, is GRANTED; and 9 3. Plaintiff is granted thirty days from the date of service of this order in which to 10 file the Fourth Amended Complaint, pursuant to the Court’s screening order 11 issued on December 19, 2019. 12 IT IS SO ORDERED. 13 14 Dated: January 16, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28