(PC) Hawkins v. Gomez ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICKY HAWKINS, Case No. 2:21-cv-02302-JDP (PC) 12 Plaintiff, ORDER 13 v. DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL AND GRANTING 14 O. GOMEZ, et al., PLAINTIFF THIRTY DAYS TO FILE AN OPPOSITION TO DEFENDANTS’ MOTION 15 Defendants. FOR SUMMARY JUDGMENT 16 ECF No. 65 17 OPPOSITION DUE WITHIN THIRTY DAYS 18 19 Plaintiff is a state inmate proceeding without counsel in this civil rights action brought 20 under 42 U.S.C. § 1983. On October 24, 2023, defendants filed a partial motion for summary 21 judgment. ECF No. 59. After plaintiff failed to file an opposition or statement of non-opposition, 22 I issued an order to show cause why this case should not be dismissed based on his failure to 23 prosecute and to comply with court orders. ECF No. 64. Plaintiff filed a response to the order to 24 show cause and a motion to appoint counsel. ECF No. 65. In it, plaintiff notes that the ‘jailhouse 25 lawyer’ who was helping him has been transferred to another institution. Plaintiff explains that 26 he is unsure how to proceed with his case and asks that a lawyer be appointed. 27 Plaintiff does not have a constitutional right to appointed counsel, see Rand v. Rowland, 28 113 F.3d 1520, 1525 (9th Cir. 1997), and the court lacks authority to require an attorney to 1 | represent plaintiff. See Mallard v. U.S. Dist. Ct. for the S. Dist. of Jowa, 490 U.S. 296, 298 2 | (1989). The court can request the voluntary assistance of counsel. See 28 U.S.C. § 1915(e)(1) 3 | (‘The court may request an attorney to represent any person unable to afford counsel”); Rand, 4 113 F.3d at 1525. But without a means to compensate counsel, the court will seek volunteer 5 | counsel only in exceptional circumstances. In determining whether such circumstances exist, 6 | “the district court must evaluate both the likelihood of success on the merits [and] the ability of 7 | the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues 8 | involved.” Rand, 113 F.3d at 1525 (internal quotation marks and citations omitted). 9 I cannot find that the appointment of counsel is warranted at this point. I recognize 10 | plaintiff's predicament, but at present, the allegations in the complaint are not exceptionally 11 | complicated and plaintiff has not demonstrated that he is likely to succeed on the merits. 12 | However, in light of plaintiff's filing, I will grant plaintiff an additional thirty days to file an 13 | opposition to defendants’ motion. If plaintiff has not filed a response by that deadline, I will 14 | deem the motion submitted. 15 Accordingly, it is hereby ORDERED that: 16 1. Plaintiffs motion for the appointment of counsel, ECF No. 65, is denied. 17 2. Plaintiff is granted thirty days from the date of this order to file an opposition to 18 | defendants’ motion for summary judgment. 19 3. If plaintiff does not file an opposition within thirty days, defendants’ motion will be 20 | deemed submitted for ruling. 21 IT IS SO ORDERED. 23 ( 1 Oy — Dated: _ February 23, 2024 q——— 24 JEREMY D,. PETERSON UNITED STATES MAGISTRATE JUDGE 26 27 28