(PC)Allen v. Arias ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES D. ALLEN, Case No. 1:22-cv-01502-ADA-BAM (PC) 12 Plaintiff, ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL 13 v. (ECF No. 10) 14 ARIAS, et al., ORDER GRANTING MOTION FOR 15 Defendants. EXTENSION OF TIME TO FILE FIRST AMENDED COMPLAINT 16 (ECF No. 10) 17 THIRTY (30) DAY DEADLINE 18 19 Plaintiff James D. Allen (“Plaintiff”) is a state prisoner proceeding pro se and in forma 20 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On April 10, 2023, the Court 21 screened the complaint and ordered Plaintiff to file an amended complaint or a notice of voluntary 22 dismissal within thirty days. (ECF No. 9.) 23 Currently before the Court is Plaintiff’s motion requesting an extension of time and 24 appointment of counsel, filed May 11, 2023. (ECF No. 10.) In his motion, Plaintiff requests an 25 extension of time to amend his complaint and appointment of counsel. Plaintiff explains that 26 since his arrival and Chuckawalla Valley State Prison (“CVSP”) on October 27, 2022, to the 27 present, there has been an ongoing inconsistency in providing adequate regular law library use for 28 inmates. The Delta Yard is currently scheduled to have access to the law library once a week for 1 several hours, if they run it at all. There are no physical law library books, the computer system 2 has periodically failed to provide research information due to malfunctioning, the paging system 3 is inadequate, and there is one law librarian for the entire prison for all yards. COVID-19 has 4 previously impacted the program at CVSP, and there are discrepancies in receiving important pre- 5 opened and missing legal mail. Plaintiff has requested a transfer to a different institution due to 6 the lack of legal assistance at the prison. Plaintiff is an inexperienced litigant at this level of civil 7 law and has no outside support from family or friends to aid him in this civil complaint. Plaintiff 8 requests appointment of counsel because he may not be transferred to another institution with 9 adequate law library access should the Court impose future deadlines in this case. (Id.) 10 Plaintiff is informed he does not have a constitutional right to appointed counsel in this 11 action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 12 154 F.3d 952, 954 n.1 (9th Cir. 1998), and the court cannot require an attorney to represent 13 plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 14 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court may request 15 the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 16 Without a reasonable method of securing and compensating counsel, the Court will seek 17 volunteer counsel only in the most serious and exceptional cases. In determining whether 18 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 19 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 20 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 21 The Court has considered Plaintiff’s request, but does not find the required exceptional 22 circumstances. Even if it is assumed that Plaintiff is not well versed in the law and that he has 23 made serious allegations which, if proved, would entitle him to relief, his case is not exceptional. 24 This Court is faced with similar cases filed by prisoners with limited legal knowledge and limited 25 access to their institution’s law library who are proceeding pro se almost daily. These prisoners 26 also must conduct legal research and prosecute claims without the assistance of counsel. 27 Although Plaintiff may be limited in his access to the law library, if he needs additional time to 28 meet the Court’s deadlines he may seek an extension of time, as he has done here. 1 Furthermore, at this stage in the proceedings, the Court cannot make a determination that 2 Plaintiff is likely to succeed on the merits. Plaintiff’s original complaint was screened and found 3 not to state cognizable claims, and the Court is awaiting the filing of Plaintiff’s amended 4 complaint for screening. Further, based on a review of the record in this case, the Court does not 5 find that Plaintiff cannot adequately articulate his claims. 6 Finally, with respect to Plaintiff’s request for an extension of time to file an amended 7 complaint, the Court finds good cause for the requested extension. As Plaintiff has not requested 8 a specific length of extension, the Court finds that an extension of thirty days is appropriate under 9 the circumstances. 10 Accordingly, IT IS HEREBY ORDERED as follows: 11 1. Plaintiff’s motion to appoint counsel, (ECF No. 10), is DENIED, without prejudice; 12 2. Plaintiff’s motion for extension of time to file an amended complaint, (ECF No. 10), is 13 GRANTED; 14 3. The Clerk’s Office shall send Plaintiff a complaint form; 15 4. Within thirty (30) days from the date of service of this order, Plaintiff shall file an 16 amended complaint curing the deficiencies identified by the Court in the April 10, 17 2023 screening order or file a notice of voluntary dismissal pursuant to Federal Rule 18 of Civil Procedure 41(a); and 19 5. The failure to comply with this order will result in a recommendation to dismiss 20 this action, with prejudice, for failure to obey a court order and for failure to 21 state a claim. 22 IT IS SO ORDERED. 23 24 Dated: May 12, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 25 26 27 28