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Davis v. Sherman

United States District Court, E.D. California

December 17, 2019

MATTHEW ANDREW DAVIS, Plaintiff,
v.
STEWARD SHERMAN, et al., Defendants.

         ORDER VACATING FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM, FAILURE TO OBEY A COURT ORDER, AND FAILURE TO PROSECUTE (ECF NO. 16) ORDER GRANTING PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO FILE SECOND AMENDED COMPLAINT AND DENYING PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL (ECF NO. 17)

          BARBARA A. MCAULIFFE, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Matthew Andrew Davis is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.[1] This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

         I. Introduction

         On September 25, 2019, the Court found that Plaintiff's first amended complaint failed to comply with Federal Rule of Civil Procedure 8 and failed to state any cognizable claim for relief. (ECF No. 15.) The Court granted Plaintiff thirty days, running from the date of service of the order, to file either a second amended complaint or a notice of voluntary dismissal. (Id. at 16.) Plaintiff was expressly warned that, if he failed to comply with the Court's order, the Court would recommend to the District Judge that this action be dismissed for failure to prosecute and failure to obey a court order. (Id. at 16.)

         On November 18, 2019, after Plaintiff failed to file a second amended complaint or otherwise communicate with the Court, the Court issued findings and recommendations to dismiss this action, with prejudice, based on Plaintiff's failure to state any cognizable claim upon which relief may be granted, failure to obey the Court's September 25, 2019 screening order, and failure to prosecute this action. (ECF No. 16.) The findings and recommendation were served on Plaintiff and contained notice that any objections thereto were to be filed within fourteen (14) days after service. (Id. at 18.)

         Currently before the Court is a letter from Plaintiff, filed on December 11, 2019. (ECF No. 17.) Since Plaintiff's letter states that Plaintiff “need[s] more time and legal assistance to help me with the Amended Complaint[, ]” the Court construes Plaintiff's letter as a motion for an extension of time to file a second amended complaint and a motion for appointment of counsel. (Id.)

         II. Motion for Extension of Time to File Second Amended Complaint

         In his letter to the Court, Plaintiff requests an extension of time to file a second amended complaint. Plaintiff asserts that he missed the deadline to file a second amended complaint because he “got moved around a lot” and the “staff in the library there to help me was out.” (Id.)

         Having considered the request, the Court finds that Plaintiff has demonstrated good cause for an extension of time. Fed.R.Civ.P. 6(b). Therefore, Plaintiff's motion for an extension of time to file a second amended complaint is granted. In light of the extension of time to file a second amended complaint, the findings and recommendations issued on November 18, 2019 are vacated.

         III. 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 any 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). Nevertheless, in certain exceptional circumstances, the court may request the voluntary assistance of counsel pursuant to § 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 on 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). “Neither of these considerations is dispositive and instead must be viewed together.” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). The burden of demonstrating exceptional circumstances is on the plaintiff. Id.

         Here, Plaintiff argues that he needs legal assistance to help him with the second amended complaint because he claims to have a disability covered under the Americans with Disabilities Act, which makes it “hard for me to read, write and/or understand material regarding my case.” (ECF No. 17.) Further, Plaintiff's letter states that P. Bacher, a Library Technical Assistant at the California Substance Abuse Treatment Facility and State Prison, Corcoran, provided “scribing services verbatim in writing this letter per inmate[]” ...


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