Lopez v. Florez et al

Filing 55

ORDER DENYING Motion to Appoint Counsel and GRANTING Motion for Extension of Time to File an Opposition to Defendants' Motion to Dismiss 30-DAY DEADLINE, signed by Magistrate Judge Jennifer L. Thurston on 6/4/12. (Hellings, J)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANDREW R. LOPEZ,

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Case No. 1:08-cv-01975-LJO-JLT (PC)
ORDER DENYING MOTION TO
APPOINT COUNSEL AND GRANTING
MOTION FOR EXTENSION OF TIME
TO FILE AN OPPOSITION TO
DEFENDANTS’ MOTION TO DISMISS
30-DAY DEADLINE

Plaintiff,

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vs.

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FLOREZ, et al,

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Defendants.

(Doc. 54).

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On May 31, 2012, Plaintiff filed his fourth motion asking this Court to appoint counsel.

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(Doc. 54). The Court recently denied Plaintiff’s last motion to appoint counsel on May 4, 2012.

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(Doc. 51.) Plaintiff’s May 31, 2012 pleading also requests a 30 day extension of time to respond

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to Defendants’ Motion to Dismiss so that he may gather needed documents. (Id.) For the reasons

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set forth below, Plaintiff’s fourth motion to appoint counsel is DENIED and his request for a 30

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day extension of time to respond to Defendants’ Motion to Dismiss is GRANTED.

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Plaintiff is aware, from his prior motions, that he does not have a constitutional right to

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appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the

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court cannot require an attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard

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v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct.

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1814, 1816 (1989). However, in certain exceptional circumstances the court may request the

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voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.

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Though Plaintiff reports that he is aware that the Court maintains a list of counsel willing

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to take pro bono cases, he, seemingly, is unaware that this Court has the most prisoner cases of

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any court in the country. The Court simply cannot appoint an attorney for every prisoner who

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chooses to file a civil case. Instead, it must appoint counsel only in those cases that demonstrate

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exceptional circumstances. Despite Plaintiff’s belief that his case is exceptional, clearly he is

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unaware that this Court has hundreds of cases exactly like his in which the inmate’s complaint

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raises claims of a deprivation of medical care in violation of the Eighth Amendment. In making

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this point, the Court does not minimize the seriousness of Plaintiff’s claims.

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Once again, and for the same reasons set forth in the orders denying counsel three times

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previously, the Court does not find that Plaintiff’s case demonstrates exceptional circumstances.

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Furthermore, nothing has occurred since the Court’s May 4, 2012 order denying Plaintiff’s last

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motion for counsel or justifying Plaintiff’s repeated requests for the same relief that has been

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repeatedly denied. (Doc. 51). At most, Plaintiff includes a November 2011 letter from the law

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librarian (Doc. 54 at 12), portions of the CDCR operations manual (Id. at 14-22), and copies of

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his request for documents (Id. at 24) to support his argument that he is being denied access to the

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library and records. (Doc. 54). However, the note from the law librarian seems to indicate only

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that Plaintiff has not requested a visit to the G.L.U. library and therefore his name was not on the

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waiting list. (Id. at 12). Additionally, the CDCR section cited by Plaintiff indicates that a $.10

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per page charge would be charged for all copies (but may be waived at times when an employee

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does not supervise the review of records). (Id. at 21). The response to Plaintiff’s request for

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records seems to confirm the $.10 fee and directs him to see his counselor for copies of the

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requested records. (Id. at 24).

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documents Plaintiff filed in support of this motion, the Court finds that Plaintiff has been able to

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adequately articulate his claims. (Id.) Thus, though pursuing this litigation may be a burden on

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Plaintiff, unfortunately, his choices are to proceed by representing himself or to forego litigation.

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Based on a review of the record in this case, especially the

For the foregoing reasons and GOOD CAUSE APPEARING THEREFOR, IT IS
HEREBY ORDERED that:
1) Plaintiff’s motion for the appointment of counsel is DENIED, without prejudice.
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2) Plaintiff is granted thirty (30) days from the date of service of this order in which to
file an Opposition to Defendant’s Motion to Dismiss.

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IT IS SO ORDERED.
Dated:

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June 4, 2012

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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DEAC_Signature-END:

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