(PC) Eddington v. Chappelle ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MELVIN LAVERN EDDINGTON, Jr., Case No. 2:22-cv-00341-JDP (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR THE APPOINTMENT OF COUNSEL 13 v. ECF No. 15 14 A. CHAPELLE, et al., ORDER TO SHOW CAUSE WHY THIS 15 Defendants. CASE SHOULD NOT BE DISMISSED FOR FAILURE TO PROSECUTE AND FAILURE 16 TO STATE A CLAIM 17 RESPONSE DUE WITHIN TWENTY-ONE DAYS 18 19 On October 4, 2022, the court screened plaintiff’s complaint and found that it alleged 20 cognizable Eighth Amendment failure to protect claims against defendants Chapelle and Rios, but 21 that the other claims were not viable. ECF No. 13. The court gave plaintiff thirty days to file an 22 amended complaint or to advise the court if he wished to stand by his current complaint and 23 proceed only with his Eighth Amendment claims against defendants Chapelle and Rios. Id. at 4. 24 To date, plaintiff has not filed either an amended complaint or a notice of election to proceed on 25 the cognizable claims. Instead, he filed a motion seeking the appointment of counsel. ECF No. 26 15. 27 28 1 Motion to Appoint Counsel 2 Plaintiff does not have a constitutional right to appointed counsel in this action, see Rand 3 v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court lacks the authority to require an 4 attorney to represent plaintiff. See Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296, 5 298 (1989). The court may request the voluntary assistance of counsel. See 28 U.S.C. 6 § 1915(e)(1) (“The court may request an attorney to represent any person unable to afford 7 counsel”); Rand, 113 F.3d at 1525. However, without a means to compensate counsel, the court 8 will seek volunteer counsel only in exceptional circumstances. In determining whether such 9 circumstances exist, “the district court must evaluate both the likelihood of success on the merits 10 [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 11 legal issues involved.” Rand, 113 F.3d at 1525 (internal quotation marks and citations omitted). 12 Plaintiff argues that the court should appoint him counsel because this case is complex 13 and will require significant research and investigation. ECF No. 15 at 1. He also claims that he 14 has a mental disorder and reads at an eighth-grade level. Id. at 2. Finally, he states that he has 15 limited access to legal materials because the legal resource center is currently inactive. Id. 16 Plaintiff attached to his motion a response from his institution about the inactive legal 17 resource center. Id. at 3. The response acknowledges that the center is inactive, but states that 18 the institution has “utilized a third party legal research company to conduct legal research for 19 inmates.” Id. The response also states that plaintiff has been sent the form to request legal 20 research and material, but that he has not completed the form. Id. 21 I cannot say that plaintiff’s case is complex, since it has not proceeded past the screening 22 stage. Moreover, plaintiff’s claim that he does not have access to legal research is squarely 23 contradicted by the response from his institution. Having considered these factors, I do not find 24 that there are exceptional circumstances warranting appointment of counsel. 25 Order to Show Cause 26 To manage its docket effectively, the court requires litigants to meet certain deadlines. 27 The court may impose sanctions, including dismissing a case, for failure to comply with its orders 28 or local rules. See Fed. R. Civ. P. 41(b); E.D. Cal. L.R. 110; Hells Canyon Pres. Council v. U.S. 1 | Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 2 | 1988). Involuntary dismissal is a harsh penalty, but a district court has a duty to administer 3 || justice expeditiously and avoid needless burden for the parties. See Pagtalunan v. Galaza, 291 4 | F.3d 639, 642 (9th Cir. 2002); Fed. R. Civ. P. 1. 5 Plaintiff will be given a chance to explain why the court should not dismiss the case for 6 | his failure to file an amended complaint or notice of election to proceed on the cognizable claims. 7 | Plaintiffs failure to respond to this order will constitute a failure to comply with a court order and 8 | will result in a recommendation that this action be dismissed. Accordingly, plaintiff is ordered to 9 | show cause within twenty-one days why this case should not be dismissed for failure to prosecute 10 | and failure to state a claim. Should plaintiff wish to continue with this lawsuit, he shall file, 11 | within twenty-one days, an amended complaint or advise if he wishes to proceed only with his 12 | Eighth Amendment claims against defendants Chapelle and Rios. 13 4 IT IS SO ORDERED. 15 ( 1 ow — Dated: _ December 21, 2022 Q_—_—. 16 JEREMY D. PETERSON 7 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28