(PC) Warden v. Cowan ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MASA NATHANIAL WARDEN, No. 2:19-cv-00431-MCE-AC 12 Plaintiff, 13 v. ORDER 14 B. COWAN, et al., 15 Defendants. 16 17 The court is in receipt of plaintiff’s third motion to appoint counsel. ECF No. 46. 18 Plaintiff filed this motion on the date that his opposition brief to defendants’ motion for summary 19 judgment (ECF No. 43) was due. Plaintiff did not file an opposition brief. Plaintiff is 20 incarcerated, and is bringing his civil case as a self-represented litigant proceeding in forma 21 pauperis. ECF No. 10. 22 Plaintiff requests that the court appoint counsel, asserting he does not currently have 23 access to the law library and does not have adequate access to evidence due to his incarceration. 24 ECF No. 46 at 2. In civil cases, a pro se litigant’s right to counsel “is a privilege and not a right.” 25 United States ex Rel. Gardner v. Madden, 352 F.2d 792, 793 (9th Cir. 1965) (citation omitted). 26 “Appointment of counsel should be allowed only in exceptional cases.” Id. When determining 27 whether “exceptional circumstances” exist, the court must consider the likelihood of success on 28 the merits as well as the ability of the plaintiff to articulate his claims pro se in light of the 2 LDU VMTN Ne RMU oe POO MOP LOPE FP OAYyet ove 1 | complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). 2 The undersigned already found twice that there are no exceptional circumstances in this 3 || case, and that appointment of counsel is not warranted. ECF Nos. 30, 37. Plaintiff presents no 4 || additional information that might alter the court’s decision. Accordingly, this third motion will 5 || be denied. However, based on the contents and timing of plaintiff’s motion, the court will 6 || liberally construe it to include a request for extended time to respond to defendants’ motion for 7 || summary judgment. Plaintiff is hereby granted an extension until September 21, 2020, to file an 8 || opposition to defendants’ motion for summary judgment. The reply brief deadline is extended 9 | accordingly. If plaintiff fails to file a timely opposition, the court will construe such failure as a 10 || statement of non-opposition. 11 In conclusion, plaintiffs motion to appoint counsel (ECF No. 46) is DENIED. Plaintiff is 12 | granted until September 21, 2020 to oppose defendant’s pending motion for summary judgment. 13 IT IS SO ORDERED. 14 | DATED: August 17, 2020 . . 15 Bettie Clare 16 ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28