(PC) Clayborne v. Palmdale Hosp. ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM CLAYBORNE, No. 2:23-cv-00580-JDP (PC) 12 Plaintiff, 13 v. ORDER 14 PALMDALE HOSPITAL, et al., 15 Defendants. 16 17 Mr. Clayborne has not properly initiated an action in this court; the complaint he filed on 18 March 28, 2023, was unsigned. See ECF No. 1. He also has not filed an application for leave to 19 proceed in forma pauperis or paid the required filing fee. Accordingly, on April 24, I directed 20 Mr. Clayborne to submit a signed complaint and either the required filing fee or an application for 21 leave to proceed in forma pauperis. ECF No. 3. To date, Mr. Clayborne has not complied with 22 that order.1 Instead, he moves for the appointment of counsel. ECF No. 8. 23 Mr. Clayborne does not have a constitutional right to appointed counsel in this action, see 24 Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court lacks the authority to 25 require an attorney to represent him. See Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490 26 27 1 On May 30, 2023, a third party filed a motion for an extension of time on Mr. Clayborne’s behalf, which is impermissible under Federal Rule of Civil Procedure 11. That filing 28 was stricken. ECF No. 6. 1 | U.S. 296, 298 (1989). The court may request the voluntary assistance of counsel. See 28 U.S.C. 2 | § 1915(e)(1) (“The court may request an attorney to represent any person unable to afford 3 | counsel”); Rand, 113 F.3d at 1525. However, without a means to compensate counsel, the court 4 | will seek volunteer counsel only in exceptional circumstances. In determining whether such 5 | circumstances exist, “the district court must evaluate both the likelihood of success on the merits 6 | [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 7 | legal issues involved.” Rand, 113 F.3d at 1525 (internal quotation marks and citations omitted). 8 Mr. Clayborne has yet to properly commence an action, and he has therefore failed to 9 | demonstrate that he is likely to succeed on the merits. For this reason, his motion to appoint 10 | counsel, ECF No. 8, is denied without prejudice. He, however, will be granted a brief extension 11 | of time to comply with the court’s April 24, 2023 order requiring him to file a signed complaint 12 | and either the required filing fee or an application for leave to proceed in forma pauperis. 13 Accordingly, it is hereby ORDERED that: 14 1. Mr. Clayborne’s motion for appointment of counsel, ECF No. 8, is denied. 15 2. Mr. Clayborne is granted until August 9, 2023, to file a signed complaint and either the 16 | required filing fee or an application for leave to proceed in forma pauperis. 17 3. The Clerk of Court is directed to send Mr. Clayborne a form complaint and an 18 | application for leave to proceed in forma pauperis. 19 4. Failure by plaintiff to comply with any part of this order may result in this case being 20 | closed. 21 IT IS SO ORDERED. 23 ( q oy — Dated: _ July 11, 2023 q——— 24 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 26 27 28