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Smith v. Municipality of Fresno County

United States District Court, E.D. California

December 4, 2019

GARY PAUL SMITH, Plaintiff,
v.
MUNICIPALITY OF FRESNO COUNTY, et al., Defendants.

          ORDER RE: PLAINTIFF'S MOTION TO APPOINT COUNSEL, PLAINTIFF'S PETITION FOR WRIT OF MANDAMUS AND EXTENSION OF TIME TO FILE AMENDED COMPLAINT, MOTIONS FOR ISSUANCE OF SUBPOENAS, MOTION TO SET ASIDE SENTENCE, AND MOTION FOR MISCELLANEOUS RELIEF (ECF NOS. 10, 12, 14, 16, 17, 20)

         Gary Paul Smith (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint commencing this action on May 14, 2019, (ECF No. 1.), and his First Amended Complaint on June 10, 2019. (ECF No. 6.) Plaintiff's First Amended Complaint generally alleges that Defendants Dr. Kongara, Dr. Levy, and appeals nurse Zachary Taylor acted with deliberate indifference to Plaintiff's serious medical needs.[1]

         On November 7, 2019, the undersigned screened Plaintiff's First Amended Complaint and found that it failed to state any claims upon which relief could be granted; thus, Plaintiff was given the option of (1) filing an amended complaint, or (2) notifying the Court that he wishes to stand on the complaint, in which case findings and recommendations would be issued to the district judge consistent with the screening order. (ECF No. 21.) To date, Plaintiff has not responded to the Court's screening order.

         Prior to the Court issuing its screening order, Plaintiff filed several motions that are addressed in this Order, including: (1) a petition for a writ of mandamus and motion for extension of time to file amended complaint (ECF No. 10.), a motion to appoint counsel (ECF No. 12.), two motions for the issuance of a subpoena (ECF Nos. 16 & 20), a motion to set aside sentence (ECF No. 14.), and a motion for miscellaneous relief. (ECF No. 17.) For the following reasons, these motions (ECF Nos. 10, 12, 14, 16, 17, & 20) are DENIED.[2]

         1. Plaintiff's Motion to Appoint Counsel (ECF No. 12.)

         Plaintiff filed a motion for the appointment of pro bono counsel. Plaintiff claims that appointment of pro bono counsel is necessary because he does not know the law well, has little access to a legal library, and suffers from medical issues. (ECF No. 12.)

         The Court will DENY Plaintiff's motion for the appointment of pro bono counsel without prejudice. Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952 (9th Cir. 1998), 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).

         The Court will not order appointment of pro bono counsel at this time. The Court has reviewed the record in this case, and at this time the Court cannot make a determination that Plaintiff is likely to succeed on the merits of his claims, especially after the initial screening found no cognizable claims. Moreover, based on the record in this case, it appears that Plaintiff can adequately articulate his claims and responses to Court orders. Finally, the Court is not able to determine from Plaintiff's conclusory allegations that he has been denied reasonable access to the law library.

         Plaintiff is advised that he is not precluded from renewing the motion for appointment of pro bono counsel at a later stage of the proceedings.

         2. Petition for Writ of Mandamus and Motion for Extension of Time to File Amended Complaint (ECF No. 10.)

         Plaintiff next requests an order from the Court, instructing “Fresno County Superior Court archives on E Street Fresno, CA 93706 to send this Petitioner a copy of 12-23-02 transcripts of that morning's court appearance.” (ECF No. 10.) In the same motion, Plaintiff seeks an extension of time to file an amended complaint.

         The Court construes Plaintiff's request for an order directing the Fresno County Superior Court to provide transcripts as a petition for a writ of mandamus and the Court will DENY the petition. To the extent Plaintiff seeks mandamus relief in the form of a federal court order requiring a state court or state officials to provide transcripts, this Court lacks authority to grant any such relief. See Demos v. United States Dist. Court for the Eastern District of Washington, 925 F.2d 1160, 1161-62 (9th Cir. 1991), cert denied, 498 U.S. 1123 (petition for mandamus to compel state court to take or refrain from taking some action “frivolous as a matter of law”); Clark v. State of Washington, 366 F.2d 678, 681 (9th Cir. 1966) (“[t]he federal courts are without power to issue writs of mandamus to direct state courts or their judicial officers in the performance of their duties”) (citation omitted); see also In re Campbell, 264 F.3d 730, 731-32 (7th Cir. 2001) (denying petition for writ of mandamus that would order state trial court to give plaintiff access to certain trial transcripts which he sought in preparation for filing state post-conviction petition).

         As for the request for an extension of time to file an amended complaint, the Court will DENY this request as unnecessary. First, the Court, in its screening order, has already given Plaintiff thirty (30) days to file an amended complaint. Second, the Court has not yet set a schedule in this matter; thus, there is no deadline for amendments to pleadings. Any motion for leave to amend that Plaintiff files will-until the issuance of a scheduling order-be judged under Federal Rule of Civil Procedure 15. See DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987) (noting that leave to amend under Rule 15 is ordinarily permitted unless the amendment is futile, untimely, would cause undue prejudice to the defendants, or is sought by plaintiffs in bad faith or with a dilatory motive).

         3. Motions for Issuance of a Subpoena (ECF ...


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