United States District Court, E.D. California
MATTHEW V. SALINAS, Plaintiff,
KENNETH J. POGUE, et al., Defendants. v.
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.)
S. AUSTIN UNITED STATES MAGISTRATE JUDGE
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.)
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).
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.)
MOTION FOR APPOINTMENT OF COUNSEL
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.
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).
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.
MOTION FOR EXTENSION OF TIME
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.
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.
REQUEST FOR COPY OF ...