(PC) Rios v. Spearman ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ISRAEL RIOS, Case No. 1:19-cv-01009-ADA-HBK (PC) 12 Plaintiff, ORDER RECALLING FINDINGS AND RECOMMENDATIONS 13 v. (Doc. No. 32) 14 DR. CHINYERE NYENKE, ORDER GRANTING PLAINTIFF’S 15 Defendants. CONSTRUED MOTION FOR EXTENSION OF TIME TO FILE THIRD AMENDED 16 COMPLAINT 17 (Doc. No. 33) 18 ORDER GRANTING PLAINTIFF’S CONSTRUED MOTION REQUESTING 19 APPOINTMENT OF COUNSEL 20 (Doc. No. 33) 21 22 23 Plaintiff Israel Rios initiated this action as a state prisoner and filed a second amended 24 complaint (“SAC”) under 42 U.S.C. §1983. (Doc. No. 26). At the time of the filing of his SAC, 25 Plaintiff was proceeding pro se. On July 28, 2022, the undersigned screened Plaintiff’s SAC and 26 found that it failed to state an Eighth Amendment claim for deliberate indifference to Plaintiff’s 27 medical needs. (Doc. No. 30). Plaintiff was given three options to exercise within thirty (30) 28 days from July 28, 2022: (1) file a third amended complaint (“TAC”); (2) file a notice that he 1 intends to stand on his SAC subject to the undersigned recommending the district court dismiss 2 for reasons stated in the July 28, 2022 Screening Order; or (3) file a notice to voluntary dismiss 3 this action without prejudice, under Federal Rule of Civil Procedure 41(a)(1) because no 4 defendant had been served. (Id. at 6-7). Plaintiff did not elect any of the three options and the 5 thirty-day deadline elapsed. See docket. As a result, on September 15, 2022, the undersigned 6 issued a Findings and Recommendation (“F&R”) recommending that the district court dismiss the 7 action for Plaintiff’s failure to prosecute and failure to comply with a court order. (Doc. No. 32). 8 On September 29, 2022, Mr. Carter White filed objections to the undersigned’s September 9 15, 2022 F&R and also filed a third amended complaint (“TAC”). (Doc. Nos. 33, 34). In the 10 objections, Mr. White informed the Court that he will be representing Plaintiff as pro bono 11 counsel. (Doc. No. 33 at 1; Doc. No. 33-1 at 2). Mr. White explained he planned on drafting a 12 pro se response for Plaintiff to sign and file but “due to the press of business [he] dropped the ball 13 and did not prepare the document.” (Doc. No. 33-1 at 2). Mr. White also informed the Court that 14 he was under the impression that he was going to be appointed counsel to represent plaintiff in 15 this action and the related action of Israel Rios v. Joseph Dragon and Nandkumar Ravi, 2:20-cv- 16 00146-ADA-HBK. (Doc. No. 33 at 1). 17 “When an act may or must be done within a specified time, the court may, for good cause, 18 extend the time on a motion made after the time has expired if the party failed to act because of 19 excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). It appears that Plaintiff intended to respond to the 20 Court’s July 28, 2022 Screening Order and counsel explains that he drafted a pro se response for 21 Plaintiff to sign and file but unfortunately “dropped the ball.” (See Doc. No. 33-1 at 2). As a 22 result, a pro se response was not filed. See docket. Further, there appears to be a 23 misunderstanding between the Court and Plaintiff’s counsel. Plaintiff’s Counsel indicates that he 24 was willing to accept an appointment as counsel of record for the Plaintiff and was waiting for 25 such an appointment whereas the Court was under a different impression. Nevertheless, Plaintiff 26 filed a TAC on September 29, 2022. As a result, the Court construes Plaintiff’s objections to the 27 September 15, 2022 F&R as incorporating a motion under Rule 6 of the Federal Rules of Civil 28 Procedure requesting an extension of time due to excusable neglect. For the reasons already 1 discussed supra, the Court finds that Plaintiff stated good cause due to excusable neglect for an 2 extension of time to file a TAC under Rule 6. The Court, sua sponte and nunc pro tunc, also finds 3 that Plaintiff’s TAC is timely filed and will screen it in due course. 4 Finally, Mr. White has agreed to represent Plaintiff on a pro bono basis in this case. Mr. 5 White notes that Plaintiff has not been able to go to the law library to prepare any legal filings due 6 to his institution being on a constant lockdown. (Doc. No. 33-1 at 2). Further, Mr. White was 7 previously appointed to represent Plaintiff in the related case of Israel Rios v. Joseph Dragon and 8 Nandkumar Ravi, 2:20-cv-00146-ADA-HBK where he filed an amended complaint, notice of 9 related cases, and a motion to consolidate, which is also pending in this action. (Id.). Mr. White 10 also filed the already discussed objections to the September 15, 2022 F&R and a TAC in this 11 action. (Doc. Nos. 33, 34). 12 A review of the docket shows this action involves a complex motion to consolidate (Doc. 13 No. 29) as well as multiple attempts at unsuccessfully amending the complaint for violations of 14 the Eighth Amendment claim for deliberate indifference to Plaintiff’s medical needs (Doc. Nos. 15 1, 8, 26). While the United States Constitution does not require the appointment of counsel in a 16 civil case, motions to appoint counsel may be granted when “exceptional circumstances” exist. 17 See Lewis v. Casey, 518 U.S. 343, 354 (1996) (explaining Bounds v. Smith, 430 U.S. at 817, did 18 not create a right to appointment of counsel in civil cases); see also United States v. McQuade, 19 519 F.2d 1180, 81 (9th Cir. 1978). Further, the court may consider many factors to determine if 20 exceptional circumstances warrant appointment of counsel including, but not limited to, proof of 21 indigence, the likelihood of success on the merits, and the ability of the plaintiff to articulate his 22 or her claims pro se in light of the complexity of the legal issues involved. McQuade, 519 F.2d at 23 1181; see also Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other 24 grounds on reh’g en banc, 154 F.2d 952 (9th Cir. 1998). 25 The Court construes Plaintiff’s explanation concerning appointment of counsel in his 26 objections to the September 15, 2022 F&R as a request to appoint counsel for the entirety of this 27 action. For the reasons discussed supra, the undersigned finds that there are exceptional 28 circumstances to warrant granting Plaintiff’s construed motion to appoint counsel. 1 Accordingly, it is ORDERED: 2 1. The September 15, 2022 Findings and Recommendations (Doc. No. 32) are 3 | RECALLED. 4 2. Plaintiffs construed motion requesting an extension of time to file a third amended 5 | complaint (Doc. No. 33) is GRANTED and the Court deems the Third Amended Complaint (Doc. 6 | No. 34) timely filed and the operative pleading. 7 3. Plaintiff's construed motion requesting the appointment of Carter White as counsel for 8 | Plaintiff in the above-titled matter is GRANTED. 9 4. Appointed counsel shall notify Sujean Park via email at spark @caed.uscourts.gov if he 10 | has any questions related to the appointment. 11 12 Dated: _ October 18, 2022 Mila Zh. foareh Zack 13 HELENA M. BARCH-KUCHTA 4 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 Ce: Sujean Park 20 21 22 23 24 25 26 27 28