(PC) Caldwell v. Unknown ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEFFREY CALDWELL, Case No. 2:22-cv-00709-JDP (PC) 12 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION TO AMEND THE COMPLAINT, DENYING 13 v. HIS MOTION TO APPOINT COUNSEL, AND VACATING THE SEPTEMBER 7, 2022 14 UNKNOWN, FINDINGS AND RECOMMENDATIONS 15 Defendant. ECF Nos. 8 & 11 16 17 On May 6, 2022, I ordered plaintiff to submit within thirty days either the $402 filing fee 18 or a completed application for leave to proceed in forma pauperis. ECF No. 3. After plaintiff 19 failed to comply with that order, I ordered him to show cause within twenty-one days why this 20 action should not be dismissed for failure to pay the filing fee, failure to prosecute, and failure to 21 comply with court orders. ECF No. 4. In response, he filed a letter indicating that he did not 22 intend to file a lawsuit but was hoping that the court would appoint him counsel. ECF No. 5. I 23 deferred ruling on plaintiff’s request for counsel and instead granted him a final opportunity 24 either to pay the filing fee or to submit an application to proceed in forma pauperis. ECF No. 6. 25 On September 7, 2022, I recommended that this action be dismissed for failure to pay the 26 filing fee. ECF No. 8. At the time those findings and recommendations issued, the docket 27 reflected that plaintiff had not paid the filing fee or submitted an application to proceed in forma 28 pauperis. Plaintiff, however, had already submitted an application on September 2, 2022, but it 1 was not docketed until September 14, 2022.1 See ECF No. 9. Given that plaintiff has filed an 2 application to proceed in forma pauperis, the September 7, 2022 findings and recommendations 3 will be vacated. 4 More recently, plaintiff has filed a request for appointment of counsel or, in the 5 alternative, leave to amend his complaint.2 ECF No. 11. Plaintiff does not have a constitutional 6 right to appointed counsel in this action, see Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 7 1997), and the court lacks the authority to require an attorney to represent plaintiff. See Mallard 8 v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296, 298 (1989). The court can request the 9 voluntary assistance of counsel. See 28 U.S.C. § 1915(e)(1) (“The court may request an attorney 10 to represent any person unable to afford counsel”); Rand, 113 F.3d at 1525. But without a means 11 to compensate counsel, the court will seek volunteer counsel only in exceptional circumstances. 12 In determining whether such circumstances exist, “the district court must evaluate both the 13 likelihood of success on the merits [and] the ability of the [plaintiff] to articulate his claims pro se 14 in light of the complexity of the legal issues involved.” Rand, 113 F.3d at 1525 (internal 15 quotation marks and citations omitted). 16 Having considered these factors, I cannot conclude that exceptional circumstances 17 requiring the appointment of counsel are present here. However, plaintiff will be afforded an 18 opportunity to file an amended complaint. 19 Accordingly, it is hereby ORDERED that: 20 1. The September 7, 2022 findings and recommendations, ECF No. 8, are vacated. 21 2. Plaintiff’s request for leave to amend, ECF No. 11, which is construed as a motion, is 22 granted. 23 3. Plaintiff’s motion for appointment of counsel, ECF No. 11, is denied. 24 4. Plaintiff shall file an amended complaint within thirty days of the date of this order. 25 1 Apparently, plaintiff mailed his application to proceed in forma pauperis to the Fresno courthouse, and there was a delay in forwarding it to the Sacramento clerk’s office. 26 2 Plaintiff also states that he wants “the court to dismiss [this case] without prejudice so 27 [he] can on a later date amen[d his] complaint.” ECF No. 11 at 2. If plaintiff does not want to pursue this action, he can voluntarily dismiss it without prejudice by filing a notice of dismissal in 28 accordance with Federal Rule of Civil Procedure 41(a)(1)(A). 1 5. The Clerk of Court is directed to send plaintiff the court’s form for filing a civil rights 2 || action. 3 4 IT IS SO ORDERED. 5 ( et Dated: _ October 13, 2022 \E ee 6 We Dz. PE ) ERSON 7 UNITED STATES MAGISTRATE JUDGE 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28