(PC) Nieves v. Allison ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SANDI NIEVES, Case No. 1:22-cv-01020-ADA-CDB (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S REQUEST FOR APPOINTMENT OF 13 v. COUNSEL AND GRANTING IN PART PLAINTIFF’S MOTION FOR EXTENSION 14 KATHLEEN ALLISON, et al., OF TIME TO FILE OBJECTIONS 15 Defendants. (Docs. 22, 23) 16 THIRTY (30) DAY DEADLINE 17 18 19 Plaintiff Sandi Nieves is a state prisoner proceeding pro se and in forma pauperis in this 20 civil rights action filed under 42 U.S.C. § 1983. 21 I. Introduction 22 On September 13, 2023, the Court screened Plaintiff’s first amended complaint (“FAC”) 23 and issued findings and recommendations to dismiss this action for failure to state a claim upon 24 which relief can be granted. (Docs. 21, 22.) The Court advised Plaintiff she could file objections 25 to the findings and recommendations within fourteen days, or by September 27, 2023. (Doc. 22.) 26 On September 21, 2023, Plaintiff filed a pleading styled as “Objection to Magistrate 27 Judges Findings and Recommendations.” (Doc. 23.) Plaintiff argues the Court has a “definite 1 merit, proof, case laws, amendment violations, etc.”; and is allowing Defendant Allison to “get 2 away with her abuse of power, fraud, thievery, to prisoners such as [Plaintiff].” (Id.) However, 3 Plaintiff does not address or dispute the factual findings of the magistrate judge. Particularly in 4 light of her limited access to the law library, Plaintiff instead requests the appointment of counsel 5 and an “extension of 90 days,” presumably to file substantive objections to the findings and 6 recommendations. 7 II. Appointment of Counsel 8 Plaintiffs do not have a constitutional right to appointed counsel in section 1983 actions. 9 Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 10 952, 954 n.1 (9th Cir. 1998). The district courts lack authority to require counsel to represent 11 indigent prisoners in section 1983 cases. Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490 12 U.S. 296, 298 (1989). However, in certain exceptional circumstances, the court may request the 13 voluntary assistance of 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 seeks 15 volunteer counsel only in the most serious and exceptional cases. In determining whether 16 “exceptional circumstances exist, the district court must evaluate both the likelihood of success 17 on 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). A 19 likelihood of success on the merits determination is not the same as that required at screening; at 20 screening, the Court is tasked with determining whether a plaintiff merely has sufficiently and 21 plausibly alleged a cause of action or claim entitling the plaintiff to relief. 22 The Court must also evaluate Plaintiff’s ability to articulate his claims pro se in light of 23 the complexity of the legal issues involved. Id. Plaintiff has prosecuted his claims competently 24 and advanced his case towards trial. Specifically, a review of the docket reflects Plaintiff has 25 articulated a broad array of thoughtful arguments in connection with discovery and merits-based 26 motions and oppositions. Therefore, Plaintiff has been able to articulate his claims in light of 27 their complexity. LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987) (affirming district court’s 1 understanding of the issues and the ability to present forcefully and coherently his contentions”). 2 While the Court recognizes that Plaintiff is at a disadvantage due to his pro se status and his 3 incarceration, the test is not whether Plaintiff would benefit from the appointment of counsel. See 4 Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). The test is whether exceptional 5 circumstances exist. As further addressed below, here, exceptional circumstances are not present. 6 There is little doubt most pro se litigants “find it difficult to articulate [their] claims,” and 7 would be better served with the assistance of counsel. Id. For this reason, in the absence of 8 counsel, federal courts employ procedures that are highly protective of a pro se litigant’s rights. 9 See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding pro se complaint to less stringent 10 standard) (per curiam). In fact, where a plaintiff appears pro se in a civil rights case, the court 11 must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim- 12 Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal 13 construction is “particularly important in civil rights cases.” Ferdik v. Bonzelet, 963 F.2d 1258, 14 1261 (9th Cir. 1992). Thus, where a pro se litigant can “articulate his claims” in light of the 15 relative complexity of the matter, the “exceptional circumstances” that might warrant the 16 appointment of counsel do not exist. Wilborn, 789 F.2d at 1331; Palmer v. Valdez, 560 F.3d 965, 17 970 (9th Cir. 2009). See Robinson v. Cryer, No. 1:20-cv-00622-HBK (PC), 2021 WL 9541411, at 18 *1 (E.D. Cal. Jan. 11, 2021) (“Although Plaintiff is proceeding pro se and is incarcerated, he 19 faces the same obstacles all pro se prisoners face”). 20 The Court has screened the original and FAC and finds this case does not present serious 21 or exceptional circumstances. Other pending or closed cases in this Court also concern the 22 forfeiture of JPay tablets and associated monetary losses. E.g., Gosztyla v. Allison, No. 1:22-cv- 23 00763-JLT-HBK (PC), 2023 WL 5353714, at *1 (E.D. Cal. Aug. 21, 2023), F.&R. adopted, 24 2023 WL 5806982 (E.D. Cal. Sept. 7, 2023); Reid v. Allison, No. 1:22-cv-1437-JLT-CDB (PC), 25 2023 WL 2143196, at *1 (E.D. Cal. Feb. 21, 2023), recon. denied, 2023 WL 2277538 (E.D. Cal. 26 Feb. 28, 2023); Ripple v. Cal. Dep’t of Corr. & Rehab., No. 1:22-cv-01102-HBK (PC), 2022 WL 27 16573690, at *1 (E.D. Cal. Nov. 1, 2022), F.&R. adopted, 2023 WL 2088352 (E.D. Cal. Feb. 17, 1 the case nor an inability to articulate the claims. Even under a liberal construction, the underlying 2 factual allegations simply do not support Plaintiff’s claims of constitutional violations. 3 Because this case does not present extraordinary circumstances and Plaintiff is able to 4 articulate her claims, the Court declines to seek and request voluntary counsel on Plaintiff’s 5 behalf. Accordingly, Plaintiff’s request for court-appointed counsel is denied. 6 III. Extension of Time 7 In conjunction with the request for a court-appointed attorney, Plaintiff seeks a ninety- 8 day extension of time, presumably for such attorney to review Plaintiff’s case and file objections 9 on her behalf. Because Plaintiff must continue to represent herself, a three-month extension of 10 time is unwarranted. 11 In its findings and recommendations, the Court provided Plaintiff with applicable legal 12 standards, which she can use for guidance when preparing her objections. Nonetheless, given 13 Plaintiff’s limited access to the law library and her pro se status, the Court will grant Plaintiff 14 thirty days to file objections to the findings and recommendations of September 13, 2023. (Doc. 15 22.) 16 IV. Conclusion 17 Accordingly, it is hereby ORDERED: 18 1. Plaintiff’s request for the appointment of counsel is DENIED; 19 2. Plaintiff’s request for an extension of time is GRANTED in part; and 20 21 22 Remainder of This Page Intentionally Left Blank 23 24 25 26 27 1 3. Within thirty (30) days from the date of service of this Order, Plaintiff may file 2 objections to the findings and recommendations for the assigned District 3 Judge’s consideration. 4 | Failure to comply with this Order may result in the Court’s consideration of the findings 5 || and recommendations of September 13, 2023, without objections or further input from 6 | Plaintiff. 7 | ITISSO ORDERED. 8 Dated: _ September 25, 2023 | V Vv D 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28