(PC) Ibuado v. Federal Prison Atwater ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GERALD IBUADO, Case No. 1:22-cv-00651-AWI-BAM (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL AND 13 v. GRANTING PLAINTIFF’S MOTION FOR EXTENSION OF TIME TO FILE 14 FEDERAL PRISON ATWATER, et al., OBJECTIONS TO FINDINGS AND RECOMMENDATIONS 15 Defendants. (ECF No. 15) 16 THIRTY (30) DAY DEADLINE 17 18 Plaintiff Gerald Ibuado (“Plaintiff”) is a former federal prisoner proceeding pro se and in 19 forma pauperis in this civil rights action pursuant to Bivens v. Six Unknown Named Agents of 20 Federal Bureau of Narcotics, 403 U.S. 388 (1971). 21 On November 8, 2022, the undersigned screened Plaintiff’s first amended complaint and 22 found that it failed to state a cognizable claim for relief. (ECF No. 14.) The undersigned further 23 recommended that this action be dismissed based on Plaintiff’s failure to state claim a cognizable 24 claim upon which relief may be granted. (Id.) Plaintiff was directed to file any objections to the 25 findings and recommendations within fourteen days. (Id.) 26 Currently before the Court is Plaintiff’s motion for an extension of time and request for 27 appointment of counsel, filed November 28, 2022. (ECF No. 15.) Plaintiff states that he needs 28 an extension because he does not have counsel and he does not read or write. Plaintiff states that 1 he does not understand what the Court wants or needs from him to continue his case, he does not 2 understand what the denial is about, and he does not understand the law. Plaintiff does not have 3 income and cannot find an attorney that practices in California. Plaintiff states that he has 4 enclosed copies and letters from his psychiatrist, Dr. Penn, stating that he does not read or write.1 5 It appears Plaintiff has also attached a letter from his wife, which also states that Plaintiff needs 6 help with reading and writing and that they cannot afford a lawyer to represent Plaintiff. (Id.) 7 With respect to Plaintiff’s request for appointment of counsel, Plaintiff is informed that he 8 does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 9 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 952, 954 n.1 (9th Cir. 10 1998), and the court cannot require an attorney to represent plaintiff pursuant to 28 U.S.C. 11 § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 298 (1989). 12 However, in certain exceptional circumstances the court may request the voluntary assistance of 13 counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 14 Without a reasonable method of securing and compensating counsel, the Court will seek 15 volunteer counsel only in the most serious and exceptional cases. In determining whether 16 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 17 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 18 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 19 The Court has considered Plaintiff’s request, but does not find the required exceptional 20 circumstances. Even if it is assumed that Plaintiff has made serious allegations which, if proved, 21 would entitle him to relief, his case is not exceptional. This Court is faced with similar cases filed 22 almost daily by prisoners and former prisoners with limited education. These plaintiffs also must 23 litigate their cases without the assistance of counsel. 24 Furthermore, at this stage in the proceedings, the Court cannot make a determination that 25 Plaintiff is likely to succeed on the merits. The Court has screened Plaintiff’s first amended 26 complaint and found that it does not state a cognizable claim for relief, indicating a low likelihood 27 28 1 The Court notes, however, that no such letter is attached to the filing. 1 of success on the merits. 2 Finally, based on a review of the record in this case, the Court does not find that Plaintiff 3 cannot adequately articulate his claims. Although Plaintiff claims that he cannot read or write, 4 Plaintiff has previously filed a complaint, three motions to proceed in forma pauperis, a motion 5 for extension of time to file a first amended complaint, and a first amended complaint, but has 6 never previously stated that he was unable to read or write. Based on these filings, it does not 7 appear that Plaintiff has previously had any difficulty reading, understanding, or responding in 8 writing to the Court’s orders. 9 However, in an abundance of caution, and in light of Plaintiff’s pro se status, the Court 10 finds good cause to grant the requested extension of time. Fed. R. Civ. P. 6. Although Plaintiff 11 has not specified the length of extension required, the Court finds that an extension of thirty days 12 is sufficient for Plaintiff to receive the Court’s order and file any objections to the pending 13 findings and recommendations. 14 Accordingly, IT IS HEREBY ORDERED that: 15 1. Plaintiff’s motion for appointment of counsel, (ECF No. 14), is DENIED, without 16 prejudice; 17 2. Plaintiff’s motion for extension of time, (ECF No. 14), is GRANTED; and 18 3. Within thirty (30) days from the date of service of this order, Plaintiff shall file his 19 objections, if any, to the November 8, 2022, findings and recommendations. 20 IT IS SO ORDERED. 21 22 Dated: November 29, 2022 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28