Allen v. Stanislaus County et al

Filing 57

ORDER OVERRULING PLAINTIFF'S OBJECTIONS TO DEFENDANTS' REQUEST TO EXTEND TIME TO FILE A DISPOSITIVE MOTION RELATING TO EXHAUSTION OF THE ADMINISTRATIVE REMEDIES AND DENYING PLAINTIFF'S REQUEST FOR APPOINTMENT OF COUNSEL re 56 signed by Magistrate Judge Stanley A. Boone on 5/21/2015. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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COLUMBUS ALLEN, JR.

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Plaintiff,
v.
STANISLAUS COUNTY, et al.,
Defendants.

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Case No.: 1:13-cv-00012-AWI-SAB (PC)
ORDER OVERRULING PLAINTIFF’S
OBJECTIONS TO DEFENDANTS’ REQUEST TO
EXTEND TIME TO FILE A DISPOSITIVE
MOTION RELATING TO EXHAUSTION OF THE
ADMINISTRATIVE REMEDIES, AND DENYING
PLAINTIFF’S REQUEST FOR APPOINTMENT
OF COUNSEL
[ECF No. 56]

Plaintiff Columbus Allen, Jr. is appearing pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983.
On May 7, 2015, Defendants filed a request to extend the time to file a dispositive motion

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relating to exhaustion of the administrative remedies. Finding good cause for the extension of time,

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the Court granted Defendants’ motion on May 8, 2015, and set the deadline to file a dispositive motion

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relating to exhaustion of the administrative remedies as August 11, 2015. (ECF No. 55.)

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Now pending before the Court is Plaintiff’s opposition to Defendants’ motion for an extension

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of time, filed May 20, 2015. (ECF No. 56.) Plaintiff contends that Defendants were aware of the

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exhaustion of the administrative remedies issue since at least the filing of their motion to dismiss on

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July 29, 2014, and Plaintiff will be prejudiced by an extension of time. Plaintiff further requests that if

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the Court finds good cause to grant Defendants’ motion for an extension of time counsel be appointed

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to represent him in this action.
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The Court granted Defendants’ May 7, 2015, request for an extension of time finding good

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cause based on the representation by defense counsel that the investigation is taking longer to

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complete than anticipated despite Defendants’ best efforts as numerous individuals are involved and

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there are four different claims in this action, and discovery may be necessary in order to complete a

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motion relating to exhaustion. Plaintiff has failed to overcome the showing of good cause set forth by

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Defendants, and his objections to Defendants’ motion for an extension of time are OVERRULED.

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As to Plaintiff’s request for the appointment of counsel, it must be denied. Plaintiff does not

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have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525

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(9th Cir. 1997), and the court cannot require any attorney to represent plaintiff pursuant to 28 U.S.C. §

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1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296,

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298 (1989). However, in certain exceptional circumstances the court may request the voluntary

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

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Without a reasonable method of securing and compensating counsel, the court will seek

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volunteer counsel only in the most serious and exceptional cases. In determining whether

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“exceptional circumstances exist, the district court must evaluate both the likelihood of success on the

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merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the

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legal issues involved.” Id. (internal quotation marks and citations omitted). Further, granting an

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extension of time does not necessitate the appointment of counsel, nor is the Court obligated to give

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one party something after another was granted their request. Request are assessed individually based

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upon the law and not on a quid pro quo basis.

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In the present case, the Court does not find the required exceptional circumstances. Even if it

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assumed that plaintiff is not well versed in the law and that he has made serious allegations which, if

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proved, would entitle him to relief, his case is not exceptional. Plaintiff alleges claims based on denial

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of outdoor exercise, denial of access to telephone privileges, failure to protect and retaliation. The

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legal issues present in this action are not complex, and Plaintiff has thoroughly set forth his allegations

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in the complaint. In addition, at this early stage in the proceedings, the Court cannot make a

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determination that Plaintiff is likely to succeed on the merits, and based on a review of the record in

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this case, the court does not find that plaintiff cannot adequately articulate his claims. Id.

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Accordingly, Plaintiff’s motion for appointment of counsel must be denied.

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Based on the foregoing, it is HEREBY ORDERED that:

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Plaintiff’s objections to Defendants’ motion for an extension of time to file a motion for

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summary judgment relating to exhaustion of the administrative remedies are

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OVERRULED; and
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Plaintiff’s request for appointment of counsel is DENIED, without prejudice.

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IT IS SO ORDERED.
Dated:

May 21, 2015
UNITED STATES MAGISTRATE JUDGE

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