United States District Court, E.D. California
GRANTING PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO FILE
OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT,
DENYING PLAINTIFF'S RENEWED MOTION FOR APPOINTMENT OF
COUNSEL, AND DENYING PLAINTIFF'S MOTION FOR ORDER
REQUIRING DEFENDANTS TO CONSIDER PLAINTIFF'S SETTLEMENT
OFFER (ECF NO. 30)
Barbara A. McAuliffe UNITED STATES MAGISTRATE JUDGE
Malcolm Tandy Lamon Stroud is a state prisoner proceeding
pro se and in forma pauperis in this civil
rights action pursuant to 42 U.S.C. § 1983. This matter
was referred to a United States Magistrate Judge pursuant to
28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
action is currently proceeding on Plaintiff's first
amended complaint against Defendant Pruitt for sexual abuse
in violation of the Eighth Amendment and against Defendants
Pruitt and Smith for discrimination in violation of the Equal
Protection Clause of the Fourteenth Amendment. (ECF No. 19.)
December 9, 2019, Defendants Pruitt and Smith filed a motion
for summary judgment for failure to exhaust administrative
remedies. (ECF No. 29.)
before the Court is Plaintiff's motion for an extension
of time to file an opposition to Defendants' motion for
summary judgment, Plaintiff's renewed motion for
appointment of counsel, and Plaintiff's motion for an
order requiring Defendants to consider Plaintiff's
settlement offer, filed on January 6, 2020. (ECF No. 30.)
Motion for Extension of Time to File Second Amended
requests that this Court grant him an extension of time to
file his opposition to Defendants' motion for summary
judgment. (ECF No. 30.) Plaintiff asserts that he needs
additional time to adequately prepare his opposition because
he has been unable to get access to the prison law library
due to the numbers of other inmates also wanting access and
the library's limited schedule during the holiday season.
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 his opposition to Defendants'
summary judgment motion is granted. Plaintiff shall file his
opposition to Defendants' motion for summary judgment, if
any, no later than thirty (30) days from the date of service
of this order.
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 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.
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.
Plaintiff contends that the Court should appoint counsel to
represent Plaintiff in this action because Plaintiff is an
indigent layperson at law, who suffers from post-traumatic
stress disorder. Specifically, Plaintiff asserts that they
have a hard time with concentrating, ...