(PC) Burchett v. California Dept of Corr and Rehabilitations ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 PETER BURCHETT, Case No. 1:19-cv-00055-NONE-EPG (PC) 11 Plaintiff, ORDER GRANTING IN PART 12 PLAINTIFF’S MOTION FOR EXTENSION v. OF TIME TO RESPOND TO 13 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, DENYING PLAINTIFF’S 14 JANE DOE, et al., MOTION FOR EXTENSION OF TIME TO FILE MOTION TO SUBSTITUTE, AND 15 Defendants. DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF PRO BONO COUNSEL 16 (ECF Nos. 111 & 112) 17 18 Peter Burchett (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in 19 this civil rights action filed pursuant to 42 U.S.C. § 1983. 20 On February 17, 2021, Plaintiff filed two motions. (ECF Nos. 111 & 112). At times 21 Plaintiff’s motions are difficult to understand, but Plaintiff appears to ask for extensions of time 22 and for appointment of pro bono counsel. Plaintiff appears to ask for the extensions of time due 23 to the restrictions imposed because of the ongoing COVID-19 pandemic. Plaintiff appears to ask 24 for counsel because of the restrictions and because counsel can preserve evidence for Plaintiff. 25 As to Plaintiff’s request for an extension of time to respond to Defendant’s motion for 26 summary judgment, the Court finds good cause to grant it in part. However, the Court will not 27 grant Plaintiff a ninety-day extension at this time. Defendant Ramirez’s motion for summary 28 judgment is based solely on the defense of failure to exhaust available administrative remedies, 1 and Plaintiff has not adequately explained why the Court should, at this time, grant him ninety 2 additional days or more to file an opposition to this motion. If Plaintiff needs an additional 3 extension of this deadline, he should attach his request for law library access and/or paging 4 services, as well as the institution’s response to his request, to his motion for an extension of time 5 As to Plaintiff’s request for an extension of time to file a motion to substitute named 6 defendants in place of the Doe Defendants, the Court does not find good cause to grant it. 7 Plaintiff has not explained why he needs access to the law library in order to identify these 8 defendants, nor has he explained the steps he has taken, such as requesting discovery from 9 Defendant, in order to identify these defendants. Moreover, in the order granting Plaintiff’s 10 previous request for an extension of time to file a motion to substitute, the Court told Plaintiff that 11 if he needed “an additional extension of time, in his motion he should attach his request for law 12 library access and/or paging services, as well as the institution’s response to his request.” (ECF 13 No. 107, p. 2). While Plaintiff did attach a legal copy verification form and an inmate request for 14 interview form, they are mostly blank.1 The forms do not include what Plaintiff requested or the 15 institution’s response to Plaintiff’s request. Accordingly, Plaintiff’s request for additional time to 16 file a motion to substitute will be denied. 17 Finally, as to Plaintiff’s motion for appointment of pro bono counsel, it will be denied 18 without prejudice. Plaintiff does not have a constitutional right to appointed counsel in this 19 action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other 20 grounds, 154 F.3d 952 (9th Cir. 1998), and the Court cannot require an attorney to represent 21 Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the 22 Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional 23 circumstances the Court may request the voluntary assistance of counsel pursuant to section 24 1915(e)(1). Rand, 113 F.3d at 1525. 25 Without a reasonable method of securing and compensating counsel, the Court will seek 26 volunteer counsel only in the most serious and exceptional cases. In determining whether 27 1 Plaintiff appears to allege that prison staff ignore his requests for law library access, but the request forms attached by Plaintiff are blank. Thus, it does not appear that Plaintiff requested law library access using these forms. 28 1 | “exceptional circumstances exist, a district court must evaluate both the likelihood of success of 2 | the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 3 | complexity of the legal issues involved.” Id. (citation and internal quotation marks omitted). 4 The Court has reviewed the record in this case, and at this time the Court is unable to make 5 | determination that Plaintiff is likely to succeed on the merits of his claims. Moreover, while the 6 | Court has had some difficulty understanding Plaintiffs filings, it appears that Plaintiff can 7 | adequately articulate his claims. Therefore, Plaintiff's request for appointment of pro bono 8 | counsel will be denied without prejudice. 9 Based on the foregoing, IT IS HEREBY ORDERED that: 10 1. Plaintiff has sixty days from the date of service of this order to file his response to 11 Defendant’s motion for summary judgment. If Plaintiff needs an additional extension 12 of this deadline, he should attach his request for law library access and/or paging 13 services, as well as the institution’s response to his request, to his motion for an 14 extension of time. 15 2. Plaintiff’s request for an extension of time to file a motion to substitute named 16 defendants in place of the Doe Defendants is denied; and 17 3. Plaintiff's request for appointment of pro bono counsel is denied without prejudice. 18 19 IT IS SO ORDERED. 20 | Dated: _ February 19, 2021 [Jee hey □ 1 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28