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Salinas v. Pogue

United States District Court, E.D. California

November 8, 2017

MATTHEW V. SALINAS, Plaintiff,
v.
KENNETH J. POGUE, et al., Defendants. v.

         ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL, GRANTING MOTION FOR EXTENSION OF TIME, AND GRANTING REQUEST FOR COPY OF COMPLAINT (ECF NOS. 34, 35.) SIXTY-DAY DEADLINE TO EITHER: (1) FILE THIRD AMENDED COMPLAINT OR (2) NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY WITH CLAIMS FOUND COGNIZABLE BY COURT ORDER FOR CLERK TO SEND PLAINTIFF COPY OF SECOND AMENDED COMPLAINT AND EXHIBITS (ECF NO. 29.)

          GARY S. AUSTIN UNITED STATES MAGISTRATE JUDGE

         I. BACKGROUND

         Matthew V. Salinas (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On April 14, 2016, Plaintiff filed the Complaint commencing this action. (ECF No. 1.)

         On August 19, 2016, Plaintiff consented to Magistrate Judge jurisdiction in this action pursuant to 28 U.S.C. § 636(c), and no other parties have made an appearance. (ECF No. 14.) Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of California, the undersigned shall conduct any and all proceedings in the case until such time as reassignment to a District Judge is required. Local Rule Appendix A(k)(3).

         On November 3, 2017, Plaintiff filed a motion for appointment of counsel. (ECF No. 34.) On November 6, 2017, Plaintiff filed another motion for appointment of counsel, a motion for an extension of time, and a request for a copy of the Second Amended Complaint. (ECF No. 35.)

         II. MOTION FOR APPOINTMENT OF COUNSEL

         Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.

         Without a reasonable method of securing and compensating counsel, the court will seek volunteer counsel only in the most serious and exceptional cases. In determining whether “exceptional circumstances exist, the district court must evaluate both the likelihood of success of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted).

         In the present case, the court does not find the required exceptional circumstances. At this juncture, Plaintiff has been granted leave to either file a Third Amended Complaint or proceed with the claims found cognizable by the court in the Second Amended Complaint. Therefore, there is presently no complaint on file in this case with which to proceed, and the court cannot make a determination that Plaintiff is likely to succeed on the merits. Based on the record in this case, Plaintiff is able to adequately articulate his claims and respond to the court's orders. Therefore, Plaintiff's motion shall be denied, without prejudice to renewal of the motion at a later stage of the proceedings.

         III. MOTION FOR EXTENSION OF TIME

         Plaintiff requests an extension of time to respond to the court's September 21, 2017, order, which requires him to either file a Third Amended Complaint or proceed with the claims found cognizable by the court in the Second Amended Complaint. Plaintiff seeks additional time because he is a county jail inmate and has limited access to legal resources via the law library. Plaintiff explains that he is only permitted to request five legal resources per month.

         Plaintiff shows good cause for a sixty-day extension of time. Should Plaintiff require more time, he should file another request for extension of time before the prior deadline expires.

         IV. REQUEST FOR COPY OF ...


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