(PC) Torres v. Quick ( 2024 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 EDWARD TORRES, Case No. 1:22-cv-01536-KES-EPG (PC) 11 Plaintiff, ORDER DENYING PLAINTIFF’S 12 MOTION FOR APPOINTMENT v. OF COUNSEL (ECF NO. 57) AND 13 GRANTING PLAINTIFF ADDITIONAL JAYSON QUICK, et al., 30 DAYS TO RESPOND TO COURT’S 14 ORDER REQUIRING STATEMENTS Defendants. REGARDING SCHEDULE AND 15 DISCOVERY (ECF NO. 50). 16 Plaintiff Edward Torres is proceeding pro se and in forma pauperis in this civil rights 17 action filed pursuant to 42 U.S.C. § 1983. For reasons stated below, the Court denies Plaintiff’s 18 Motion for Appointment of Counsel (ECF No. 57) but grants Plaintiff additional 30 days to 19 respond to Court’s Order requiring parties to submit statements regarding schedule and 20 discovery (ECF No. 50). 21 I. BACKGROUND. 22 Plaintiff filed the Complaint commencing this action on November 30, 2022. (ECF No. 23 1). The Court screened Plaintiff’s complaint and found that the following claims should 24 proceed past the screening stage: Plaintiff’s Eighth Amendment excessive force claims against 25 defendants Quick, Garza, Garcia, Valadez, Prince, and Martinez; his Eighth Amendment failure 26 to protect claims against defendants Quick, Garza, Garcia, Valadez, Prince, and Martinez; and 27 28 1 his Eighth Amendment claim against defendant Ontiveros for deliberate indifference to his 2 serious medical needs. (Id.). 3 At the start of this case, the Court issued Informational Order, warning Plaintiff he 4 “must keep the Court and opposing parties informed of the party’s correct current address. 5 Local Rule 182(f). If a party moves to a different address without filing and serving a notice of 6 change of address, documents served at a party’s old address of record shall be deemed 7 received even if not actually received. Id.” (ECF No. 4 at 5). The Court also cautioned Plaintiff 8 that failure to follow the Court’s orders and all applicable rules “will be grounds for imposition 9 of sanctions which may include dismissal of the case.” (Id. at 1). 10 After all the defendants were served and appeared in this action, on February 29, 2024, 11 the Court ordered parties to file scheduling statements within 30 days. (ECF No. 50). However, 12 this order was returned to Court on March 8, 2024, marked as “Undeliverable, Not in Custody.” 13 The deadline set by the Court’s order to file the statements (ECF No. 50) had passed, 14 and while Defendants timely filed theirs (ECF Nos. 53, 54), Plaintiff had failed to do so. 15 Accordingly, on April 10, 2024, the Court issued a minute order granting Plaintiff a single sua 16 sponte extension, until April 24, 2024, to file his statement. (ECF No. 55). The Court also 17 advised Plaintiff that “that failure to file his statement by this date may result in the dismissal of 18 this case.” (Id.; see also ECF No. 4 at 1 (failure to follow the Court’s orders and all applicable 19 rules “will be grounds for imposition of sanctions which may include dismissal of the case.”)) 20 This order was likewise returned to Court on April 29, 2024, marked as “Undeliverable, Not in 21 Custody.” 22 After the extended deadline to respond to the Court’s order had passed, and Plaintiff 23 still had not filed his scheduling statement, updated his address, or had otherwise 24 communicated with the Court, on May 9, 2024, the Court issued Findings and 25 Recommendations to dismiss this action for failure to prosecute and failure to comply with 26 Court’s orders. (ECF No. 56). The Court gave Plaintiff 30 days to file objections to Findings 27 and Recommendations. (Id.) 28 1 II. MOTION FOR APPOINTMENT OF COUNSEL 2 Plaintiff has now responded by filing a motion (ECF No. 57). He asks for an extension 3 of time to respond to Findings and Recommendations recommending dismissal and for Court to 4 appoint him an attorney. (Id.) Plaintiff states he is homeless and has no regular address to 5 receive mail, but at least at the time of writing, he was incarcerated in Madera County Jail. (Id.) 6 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 7 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 8 952 (9th Cir. 1998), and the Court cannot require an attorney to represent Plaintiff pursuant to 9 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of 10 Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the Court may 11 request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 12 1525. 13 Without a reasonable method of securing and compensating counsel, the Court will seek 14 volunteer counsel only in the most serious and exceptional cases. In determining whether 15 “exceptional circumstances exist, a district court must evaluate both the likelihood of success of 16 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 17 complexity of the legal issues involved.” Id. (citation and internal quotation marks omitted). 18 The Court is unable to determine at this time whether Plaintiff’s likelihood of success 19 on the merits is such that the interests of justice require the appointment of counsel. The only 20 filings before the Court are parties’ initial pleadings; discovery is yet to be open and dispositive 21 motions that would define and narrow issues have not yet been filed. After the review of 22 Plaintiff’s complaint, however, it appears that the legal issues involved are not extremely 23 complex and that Plaintiff is able to articulate the facts underlying his claims. Accordingly, the 24 Court will deny Plaintiff’s request for counsel without prejudice. 25 III. MOTION FOR EXTENSION OF TIME 26 The Court will grant Plaintiff an additional 30 days, until June 17, 2024, to respond to 27 the Court’s Order issued on February 29, 2024, Requiring Statements from Parties Regarding 28 Schedule and Discovery (ECF No. 50). 1 The Court will not vacate its Findings and Recommendations recommending dismissal 2 || at this time. (ECF No. 56). Plaintiff still has not filed the statement regarding schedule and 3 || discovery or indicated that he intends to proceed without counsel going forward. However, the 4 || Court will not rule on Findings and Recommendations recommending dismissal (ECF No. 56) 5 |} until after June 17, 2024. If Plaintiff files a statement regarding schedule and discovery by that 6 || date, the Court will vacate its Findings and Recommendations and the case will proceed. If 7 || Plaintiff fails to do so, the District Judge will rule on Findings and Recommendations. 8 Accordingly, IT IS ORDERED: 9 1. Plaintiff's Motion for Appointment of Counsel (ECF No. 57) is DENIED. 10 2. Along with this Order, the Clerk of Court is directed to send Plaintiff Order 11 Requiring Statements from Parties Regarding Schedule and Discovery (ECF No. 12 50). 13 3. Plaintiff is granted additional 30 days to respond to the Court’s Order Requiring 14 Statements (ECF No. 50). 15 4. Failure to comply with this order may result in the dismissal of this action. 16 IT IS SO ORDERED. 18 || Dated: _May 16, 2024 [sf ey 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28