(PC) Price v. Sherman ( 2023 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 EDMOND PAUL PRICE, No. 1:20-cv-00131-JLT-EPG (PC) 11 Plaintiff, ORDER DENYING MOTION TO APPOINT COUNSEL, GRANTING FINAL EXTENSION 12 v. TO RESPOND TO MOTION FOR SUMMARY JUDGMENT, AND DIRECTING 13 ALVARADO, et al., CLERK OF COURT TO MAIL PLAINTIFF CERTAIN DOCUMENTS 14 Defendants. (ECF No. 102) 15 16 Plaintiff Edmond Paul Price is a Nevada state prisoner proceeding pro se and in forma 17 pauperis in this civil rights action filed under 42 U.S.C. § 1983. This case proceeds on Plaintiff’s 18 Eighth Amendment claims against: (1) Defendant Alvarado, for excessive force and deliberate 19 indifference to serious medical needs, each in violation of the Eighth Amendment; conspiracy to 20 violate the Eighth Amendment; violation of the First Amendment; and violation of the Fourth 21 Amendment for an unreasonable search; (2) Defendant Carivao, for excessive force and 22 deliberate indifference to serious medical needs, each in violation of the Eighth Amendment; 23 conspiracy to violate the Eighth Amendment; and violation of the First Amendment; and (3) 24 Defendant Martinez, for failure to protect in violation of the Eighth Amendment and conspiracy 25 to violate the Eighth Amendment. (ECF Nos. 11, 14, 19). 26 On May 26, 2023, Defendant filed a motion for summary judgment. (ECF No. 94). 27 However, despite an extended deadline to November 27, 2023, to file an opposition, Plaintiff has 28 1 filed a motion to appoint counsel, stating that he will be unable to meet this deadline. (ECF No. 2 102). Plaintiff states that he was placed in administrative segregation at his prison, which led to 3 his legal work being confiscated and not yet being returned. Additionally, Plaintiff states that he 4 was going to purchase copies of relevant documents from the docket, but prison officials wrongfully declined to send the money to the Court based on him having insufficient funds. 5 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 6 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952 7 (9th Cir. 1998), and the Court cannot require an attorney to represent Plaintiff pursuant to 28 8 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 9 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the Court may request 10 the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 11 Without a reasonable method of securing and compensating counsel, the Court will seek 12 volunteer counsel only in the most serious and exceptional cases. In determining whether 13 “exceptional circumstances exist, a district court must evaluate both the likelihood of success of 14 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 15 complexity of the legal issues involved.” Id. (citation and internal quotation marks omitted). 16 The Court will not order appointment of pro bono counsel at this time. Although the Court 17 previously appointed counsel in this case, that was for the limited purpose of discovery and a 18 settlement conference, with counsel’s appointment having ended. (ECF Nos. 30, 62). The Court 19 has reviewed the record in this case and, at this time, is unable to determine that Plaintiff is likely 20 to succeed on the merits of his claims. Moreover, it appears that Plaintiff can adequately articulate 21 his claims. 22 However, given Plaintiff’s representations about being denied access to his legal materials 23 and being unable to purchase copies from the docket, the Court will direct the Clerk of Court to 24 mail Plaintiff courtesy copies of critical documents and will extend the deadline one final time for 25 him to file an opposition. 26 Accordingly, IT IS ORDERED as follows: 27 1. Plaintiff’s motion to appoint counsel (ECF No. 102) is denied. 28 1 2. The Court will grant Plaintiff a final extension to January 22, 2024, to file any 2 opposition to the pending motion for summary judgment. If no opposition is filed 3 by this date, the Court will consider the motion unopposed. Local Rule 230(c). If 4 Plaintiff files an opposition, Defendant shall have until February 20, 2023, to file 5 any reply. 6 3. The Clerk of Court is directed to send Plaintiff a courtesy copy of the pending 7 motion for summary judgment (ECF No. 94), including all attachments, as well as 8 Plaintiff's complaint (ECF No. 1), and the screening order (ECF No. 11). 9 10 IT IS SO ORDERED. 11 | Dated: _November 27, 2023 [Jee heey □□ D UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28