(PC) Fries v. Pfeiffer ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL FRIES, 1:22-cv-00380-ADA-GSA-PC 12 ORDER DENYING MOTION FOR Plaintiff, APPOINTMENT OF COUNSEL 13 vs. ORDER GRANTING EXTENSION OF 14 TIME TO FILE AMENDED COMPLAINT PFEIFFER et al., 15 (ECF No. 19.) Defendants. 16 DEADLINE TO FILE FIRST AMENDED COMPLAINT: DECEMBER 21, 2022 17 18 19 20 21 I. BACKGROUND 22 Michael Fries (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights action 23 pursuant to 42 U.S.C. § 1983. On November 3, 2022, Plaintiff filed a motion appointment of 24 counsel, or in the alternative, an extension of time to file his amended complaint. (ECF No. 19.) 25 II. MOTION FOR APPOINTMENT OF COUNSEL 26 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 27 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to 28 represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court 1 for the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in 2 certain exceptional circumstances the court may request the voluntary assistance of counsel 3 pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 4 Without a reasonable method of securing and compensating counsel, the court will seek 5 volunteer counsel only in the most serious and exceptional cases. In determining whether 6 “exceptional circumstances exist, the district court must evaluate both the likelihood of success 7 of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 8 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 9 In the present case, the court does not find the required exceptional circumstances. 10 Plaintiff seeks appointment of counsel to assist him with litigation of this case. He asserts that 11 he has never graduated from school and he requires counsel to assist him with presenting and 12 obtaining facts and evidence supporting the legal issues in this complex and meritorious case. 13 None of these circumstances is exceptional under the law. Plaintiff’s original complaint 14 was dismissed for violation of Rule 8(a), with leave to amend, and Plaintiff has not filed his 15 amended complaint. Therefore, there is no viable complaint on file in this case, and the court 16 cannot determine whether Plaintiff’s case has merit. Plaintiff’s claims of retaliation, failure to 17 protect, mail tampering, confiscation of medical aids, and use of an improper appeals process are 18 not complex, and based on a review of the record in this case, Plaintiff can adequately articulate 19 his claims and respond to court orders. Thus, the Court does not find the required exceptional 20 circumstances, and Plaintiff’s motion for appointment of counsel shall be denied, without 21 prejudice to renewal of the motion at a later stage of the proceedings. 22 III. MOTION FOR EXTENSION OF TIME 23 Plaintiff seeks an extension of time to file his First Amended Complaint. The Court finds 24 good cause to grant Plaintiff an extension of time until December 21, 2022 in which to file the 25 First Amended Complaint. Therefore, Plaintiff’s motion shall be granted. 26 IV. CONCLUSION 27 Accordingly, THE COURT HEREBY ORDERS that: 28 1. Plaintiff’s motion for appointment of counsel is DENIED, without prejudice; and 1 2. Plaintiff is granted an extension of time until December 21, 2022 in which to file 2 his First Amended Complaint, pursuant to the Court’s order issued on August 3, 3 2022. 4 IT IS SO ORDERED. 5 6 Dated: November 17, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28