(PC) Reed v. Peery ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY J. REED, No. 2:20-cv-2373 WBS AC P 12 Plaintiff, 13 v. ORDER 14 R. PEERY, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed this civil 18 rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 Before this Court is a late-filed letter from Plaintiff requesting that he be permitted to file 21 an amended complaint. See ECF No. 10 at 1. The letter also requests the appointment of 22 counsel. See id. at 1-2. 23 The Court construes the letter as a motion to amend the complaint and a motion for the 24 appointment of counsel. For the reasons stated below, Plaintiff’s motion to amend will be 25 granted, and the pending findings and recommendations which request the dismissal of certain 26 claims and defendants (see ECF No. 9) will be vacated. In addition, Plaintiff’s motion for the 27 appointment of counsel will be denied. 28 //// 1 I. MOTION TO AMEND THE COMPLAINT 2 On December 29, 2021, the Court screened Plaintiff’s complaint. ECF No. 6. At that 3 time, Plaintiff was given the option of either proceeding on the cognizable claims and dismissing 4 those that were not cognizable as well as related defendants or of amending the complaint. See 5 id. at 7-11. He was given fourteen days to inform the Court of his choice. See id. at 10. 6 On January 27, 2021, because Plaintiff had not filed notice on how he wished to proceed, 7 the Court recommended that certain claims and defendants be dismissed from this action. See 8 ECF No. 9. That order is currently pending review by the District Court Judge assigned to this 9 action. 10 On February 4, 2022, Plaintiff filed the instant motion. See ECF No. 10. In it, Plaintiff 11 requests that he be granted the opportunity to amend the complaint, and he asks for sixty days 12 within which to do so.1 See id. at 1. 13 Plaintiff’s motion will be granted. As a result, the findings and recommendations 14 currently pending (see ECF No. 9) will be vacated. 15 II. MOTION FOR THE APPOINTMENT OF COUNSEL 16 Plaintiff has also requested the appointment of counsel. See ECF No. 10 at 1-2. In 17 support of the request, he states that he is barely able to access the law library and that he does not 18 have the legal knowledge to tackle all the responses that will be necessary to permit him to 19 prevail in this matter. See id. at 1. Plaintiff also states that he has had the COVID-19 virus and 20 that at sixty years old, his preexisting conditions make him a high-risk candidate for side effects 21 from the COVID-19 vaccinations. See id. at 1-2. 22 The United States Supreme Court has ruled that district courts lack authority to require 23 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 24 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 25 26 1 The motion also states that Plaintiff intends to “leave it to the court’s discretion whether to serve [one of the defendants] now or after [he] files his First Amended Complaint.” See ECF No. 27 10 at 1 (brackets added). Plaintiff is informed that after the First Amended Complaint is screened and all cognizable claims therein are identified, all viable defendants that remain will be served at 28 the same time. 1 || voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 2 | 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 3 The test for exceptional circumstances requires a court to evaluate a plaintiffs likelihood 4 || of success on the merits and the ability of a plaintiff to articulate his claims pro se in light of the 5 || complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th 6 || Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances common to 7 || most prisoners, such as lack of legal education and limited law library access, do not establish 8 | exceptional circumstances that would warrant a request for voluntary assistance of counsel. 9 A review of Plaintiff's complaint as well as of the instant motion indicates that he has an 10 || adequate understanding of the claims at issue in this case as well as of the steps he needs to take 11 || to move this matter forward. See generally ECF Nos. 1, 10. Moreover, Plaintiff has neither 12 || stated nor provided supporting documentation that having contracted the COVID-19 virus in the 13 || past affects his ability to prosecute this case at this time. See generally ECF No. 10. For these 14 || reasons, the Court does not find the required exceptional circumstances. 15 Accordingly, IT IS HEREBY ORDERED that: 16 1. The currently pending findings and recommendations issued January 27, 2022 (ECF 17 || No. 9), are VACATED; 18 2. Plaintiffs motion at ECF No. 10 is GRANTED IN PART and DENIED IN PART as 19 | follows: 20 a. The request to file an amended complaint is GRANTED; and 21 b. The request for appointment of counsel is DENIED. 22 3. Within sixty days of the date of this order, Plaintiff must file a First Amended 23 || Complaint. Plaintiff is informed that failure to comply with this order within the time allotted 24 || will result in the issuance of findings and recommendations similar to the ones that have been 25 || vacated herein. 26 || DATED: February 10, 2022 A / 27 ALLISON CLAIRE 28 UNITED STATES MAGISTRATE JUDGE