(PC) Mosley v. Zepp ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 THETHESIUS HOSEA MOSLEY, Case No. 1:23-cv-00421-JLT-EPG (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION 13 FOR APPOINTMENT OF PRO BONO v. COUNSEL 14 ZEPP, ORDER EXTENDING DEADLINE FOR 15 PLAINTIFF’S TO RESPOND TO Defendant DEFENDANT’S MOTION FOR SUMMARY 16 JUDGMENT 17 ORDER FOR DEFENDANT TO FILE A RESPONSE REGARDING PLAINTIFF’S 18 ALLEGATIONS OF LACK OF LEGAL PROPERTY 19 (ECF No. 51) 20 21 Plaintiff Thethesius Mosley is a state prisoner proceeding pro se in this civil rights action 22 filed pursuant to 42 U.S.C. § 1983, alleging deliberate indifference to Plaintiff’s serious medical 23 needs. 24 On September 19, 2024, Plaintiff filed a motion for appointment of pro bono counsel. 25 (ECF No. 51). As grounds, he states that he cannot afford counsel, his case is complex, and his 26 incarceration is limiting his ability to litigate this case, particularly, in responding to Defendant’s 27 motion for summary judgment. Among other things, Plaintiff states that he is in administrative 28 1 segregation, with no legal books for researching his case and the Lexis Nexis computer 2 malfunctions within thirty minutes of the two-hour session allotted to him twice a week. Plaintiff 3 states he had not yet been provided all his legal documents by prison officials and does not have a 4 ViaPath tablet (presumably referring to a tablet used for legal research). Plaintiff attaches grievance documents that complain about his lack of access to legal materials. 5 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 6 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952 7 (9th Cir. 1998), and the Court cannot require an attorney to represent Plaintiff pursuant to 28 8 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 9 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the Court may request 10 the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 11 Without a reasonable method of securing and compensating counsel, the Court will seek 12 volunteer counsel only in the most serious and exceptional cases. In determining whether 13 “exceptional circumstances exist, a district court must evaluate both the likelihood of success of 14 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 15 complexity of the legal issues involved.” Id. (citation and internal quotation marks omitted). 16 The Court will not order appointment of pro bono counsel at this time. The legal issues are 17 not unduly complex. It appears that Plaintiff can adequately articulate his claims despite his lack 18 of training in the law and he has at least some access to legal research sources. Further, the Court 19 is unable to conclude that Plaintiff is likely to succeed on the merits of his case. 20 However, because it appears that Plaintiff has limited access to legal materials, the Court 21 will sua sponte grant Plaintiff a 30-day extension to file a response to Defendant’s motion for 22 summary judgment. (See ECF No. 48). 23 Additionally, in light of Plaintiff’s allegations that he lacks his legal property related to this case, the Court will require Defendant to file a response regarding these allegations. 24 For these reasons, IT IS ORDERED as follows: 25 1. Plaintiff’s motion for appointment of pro bono counsel (ECF No. 51) is DENIED without 26 prejudice. 27 28 1 2. Plaintiff’s deadline to respond to Defendant’s motion for summary judgment is extended 2 to November 29, 2024. 3 3. By no later than September 27, 2024, Defendant shall file a response to Plaintiff's 4 allegations concerning lack of access to his legal property related to this case. 5 | SO ORDERED. | Dated: __September 20, 2024 [see hey 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28