(PC) Baltierra v. Warden - North Kern State Prison ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES BALTIERRA, Case No. 1:21-cv-01723-NODJ-HBK (PC) 12 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR EXTENSION OF TIME 13 v. ORDER DENYING MOTION FOR 14 KELLY SANTORO, et al., APPOINTMENT OF COUNSEL 15 Defendants. O CORD URER T ED SI YR E CC OT PI YN G CLERK TO PROVIDE 16 (Doc. No. 27) 17 JANUARY 30, 2024 DEADLINE 18 Pending before the Court is Plaintiff James Baltierra’s motion for extension of time, 19 constructively filed on November 27, 2023.1 (Doc. No. 27). Plaintiff seeks an extension of time 20 of “a few months” to respond to the Court’s Screening Order dated October 23, 2023 (“Screening 21 Order”). (Id. at 3). Plaintiff asserts he needs additional time due to limited access to the law 22 library, lockdowns, and constraints on his time due to physical therapy appointments and his 23 medical condition. (Id.). Also contained within Plaintiff’s Motion are a request for appointment 24 of counsel and a request for a copy of his first amended complaint (“FAC”). (Id. at 3-4). For 25 reasons set forth below, the Court will grant Plaintiff’s Motion for Extension of Time, deny 26 27 1 Although docketed on December 1, 2023, the Court affords Plaintiff, a prisoner, the benefit of the mailbox rule and deems the motions filed on the date he certifies he delivered the motion to correctional 28 officials for mailing. 1 appointment of counsel, and grant the request for a one-time courtesy copy of the FAC. 2 MOTION FOR EXTENSION OF TIME 3 The Court may grant an extension of time “with or without motion or notice if the court 4 acts, or if a request is made, before the original time or its extension expires.” Fed. R. Civ. P. 5 6(b)(1)(A). The Court finds good cause to grant the extension. Plaintiff must deliver his 6 response to the Court’s Screening Order to correctional officials no later than January 30, 2024. 7 MOTION FOR APPOINTMENT OF COUNSEL 8 The United States Constitution does not require appointment of counsel in civil cases. See 9 Lewis v. Casey, 518 U.S. 343, 354 (1996) (explaining Bounds v. Smith, 430 U.S. at 817, did not 10 create a right to appointment of counsel in civil cases). Under 28 U.S.C. § 1915, this court has 11 discretionary authority to appoint counsel for an indigent to commence, prosecute, or defend a 12 civil action. See 28 U.S.C. § 1915(e)(1) (stating the court has authority to appoint counsel for 13 people unable to afford counsel); see also United States v. McQuade, 519 F.2d 1180 (9th Cir. 14 1978) (addressing relevant standard of review for motions to appoint counsel in civil cases) (other 15 citations omitted). However, motions to appoint counsel in civil cases are granted only in 16 “exceptional circumstances.” Id. at 1181. The court may consider many factors to determine if 17 exceptional circumstances warrant appointment of counsel including, but not limited to, proof of 18 indigence, the likelihood of success on the merits, and the ability of the plaintiff to articulate his 19 or her claims pro se considering the complexity of the legal issues involved. Id.; see also Rand v. 20 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds on reh’g en 21 banc, 154 F.2d 952 (9th Cir. 1998). 22 Plaintiff has not met his “burden of demonstrating exceptional circumstances.” Jones v. 23 Chen, 2014 WL 12684497, at *1 (E.D. Cal. Jan. 14, 2014). Normal challenges faced by pro se 24 litigants do not warrant appointment of counsel. Siglar v. Hopkins, 822 F. App’x 610, 612 (9th 25 Cir. 2020) (denying appointment of counsel because the plaintiff’s “circumstances were not 26 exceptionally different from the majority of the challenges faced by pro se litigants.”) Plaintiff’s 27 lack of legal training and limited access to the law library are insufficient to establish exceptional 28 1 circumstances. Nor does Plaintiff likelihood of success on the merits weigh in favor of 2 appointing counsel. While adequately articulated, Plaintiff’s initial Complaint and FAC failed to 3 set forth sufficient factual allegations to state a claim and Plaintiff has provided no indication he 4 will be able to cure those deficiencies. Thus, Plaintiff has not demonstrated exceptional 5 circumstances that warrant appointment of counsel at this stage of the proceedings. 6 MOTION FOR COPIES 7 As a rule, a request for a copy of any pleading should be directed to the clerk’s office, not 8 to the court via a motion. Plaintiff is reminded that “proceeding in forma pauperis does not 9 entitle a party to the waiver of anything other than court filing fees.” Martin v. McNut, 2011 WL 10 4543039, at *1 (E.D. Cal. Sept. 28, 2011). Nor does plaintiff’s pro se or prisoner status entitle 11 him to receive complimentary copies. Blair v. CDCR, 2018 WL 1959532, at *6 f. 2 (E.D. Cal. 12 Apr. 25, 2018). Consistent with statute, the clerk provides copies of documents and the docket 13 sheet at $0.50 per page. See 28 U.S.C. § 1914. Checks in the exact amount are payable to 14 “Clerk, USDC.” 15 As a one-time courtesy the Court will direct the clerk to provide Plaintiff with a copy of 16 his First Amended Complaint. To the extent Plaintiff wishes to obtain a copy of any other 17 pleadings, he is required to forward a check in the appropriate amount to the clerk with his 18 request for the same. 19 Accordingly, it is hereby ORDERED: 20 1. Plaintiff’s motion for extension of time (Doc. No. 27) is GRANTED to the extent 21 Plaintiff shall deliver his response to the Screening Order to correctional officials for 22 mailing no later than January 30, 2024; 23 2. If Plaintiff’s fails to timely file a response to the Court’s Screening Order the 24 undersigned will recommend the district court dismiss this action for Plaintiff’s failure to 25 prosecute this action and/or failure to comply with a court order; 26 3. Plaintiff’s motion for appointment of counsel (Doc. No. 27) is DENIED; 27 4. Plaintiff’s motion for copy of his First Amended Complaint is GRANTED to the 28 extent that the Clerk of Court is directed to provide Plaintiff with a one-time courtesy 1 copy of his First Amended Complaint (Doc. No. 22). Should Plaintiff request copies of 2 any further pleadings he must direct his request directly to the Clerk of Court and pay the 3 appropriate fee. 4 Dated: _ December 4, 2023 Kobo Zh foareh Hack 6 HELENA M. BARCH-KUCHTA 4 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28