United States District Court, E.D. California
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,
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
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.
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.
Plaintiff's Motion to Appoint Counsel (ECF No.
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.)
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1997), withdrawn in part on other grounds, 154 F.3d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.
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).
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.
is advised that he is not precluded from renewing the motion
for appointment of pro bono counsel at a later stage of the
Petition for Writ of Mandamus and Motion for Extension of
Time to File Amended Complaint (ECF No. 10.)
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.
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
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).
Motions for Issuance of a Subpoena (ECF ...