Dustin v. Gipson et al

Filing 31

ORDER VACATING 28 FINDINGS AND RECOMMENDATIONS Entered on October 9, 2015; ORDER GRANTING Extension of Time to File Amended Complaint; ORDER DENYING 30 Motion for Return of Property, without Prejudice; ORDER DENYING 30 Motion for Appointment of Counsel, without Prejudice; Sixty Day Deadline to File First Amended Complaint signed by Magistrate Judge Erica P. Grosjean on 12/1/2015. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DALE OWEN DUSTIN,

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Plaintiff,

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vs.

1:14-cv-01405-LJO-GSA-PC
ORDER VACATING FINDINGS AND
RECOMMENDATIONS ENTERED ON
OCTOBER 9, 2015
(ECF No. 28.)

C. GIPSON, et al.,

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Defendants.

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ORDER GRANTING EXTENSION OF TIME
TO FILE AMENDED COMPLAINT
ORDER DENYING MOTION FOR RETURN
OF PROPERTY, WITHOUT PREJUDICE

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ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL, WITHOUT
PREJUDICE

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(ECF No. 30.)

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SIXTY-DAY DEADLINE TO FILE FIRST
AMENDED COMPLAINT

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On October 9, 2015, the Court entered findings and recommendations to dismiss this

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case for Plaintiff’s failure to state a claim, based on Plaintiff’s failure to file an amended

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complaint pursuant to the Court’s order of May 18, 2015. (ECF No. 28.) On November 9,

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2015, Plaintiff filed objections to the findings and recommendations, a motion for return of his

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property, and a motion for appointment of counsel. (ECF No. 30.)

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I.

PLAINTIFF’S OBJECTIONS

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Plaintiff objects to the findings and recommendations to dismiss this action, arguing

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that could not comply with the Court’s May 18, 2015 order because he is not in possession of

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his property. Plaintiff asserts that since his transfer to Kern Valley State Prison, where he is

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housed in administrative segregation, his property has not been returned to him and therefore

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he is unable to prepare and an amended complaint.

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Based on Plaintiff’s objections, the Court finds good cause to vacate the findings and

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recommendations issued on October 9, 2015, and to grant Plaintiff additional time in which to

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prepare and file a First Amended Complaint. The Court shall grant Plaintiff a sixty-day

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extension of time.

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extension of time before the expiration of the sixty-day deadline.

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II.

Should Plaintiff require additional time, he should file a motion for

MOTION FOR RETURN OF PROPERTY

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Plaintiff also requests a Court order directing prison officials at Corcoran State Prison to

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return his property to him. Plaintiff asserts that more than five boxes of his property have been

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withheld from him for the past six months, and therefore he cannot litigate his case or meet

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court deadlines.

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The Court does not have sufficient information to rule at this time regarding what

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property was taken and why. The Court also notes that there is no operative Complaint on file

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in this case, and therefore Plaintiff’s motion shall be denied without prejudice. If Plaintiff is

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still prevented from responding to Court orders, he should describe his lack of access to

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property in more detail, and the Court will revisit the issue. Therefore, Plaintiff’s motion for

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return of property shall be DENIED without prejudice to renewal of the motion at a later stage

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of the proceedings.

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III.

MOTION FOR APPOINTMENT OF COUNSEL

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Plaintiff also requests appointment of counsel. Plaintiff does not have a constitutional

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right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir.

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1997), and the Court cannot require an 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.

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296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain exceptional circumstances the

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Court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand,

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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

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

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complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted).

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In the present case, the Court does not find the required exceptional circumstances at

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this time. Plaintiff previously filed a motion for appointment of counsel on August 13, 2015,

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which was denied on August 20, 2015, and Plaintiff’s circumstances have not changed since

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then. As Plaintiff was advised in the Court’s order, at this early stage in the proceedings, the

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Court cannot make a determination that Plaintiff is likely to succeed on the merits. Plaintiff=s

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Complaint was dismissed on May 18, 2015, for failure to state a claim, with leave to amend.

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To date, Plaintiff has not filed an amended complaint. Thus, there is no complaint on record in

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this case for which the Court has found cognizable claims. It is too early for service of process,

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and no other parties have yet appeared. Moreover, the Court does not find that Plaintiff cannot

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adequately articulate his claims. Therefore, Plaintiff’s motion for the appointment of counsel

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shall be denied, without prejudice.

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IV.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

The findings and recommendations issued on October 9, 2015, are VACATED;

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2.

Good cause appearing, Plaintiff is GRANTED sixty days from the date of

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service of this order in which to file a First Amended Complaint, pursuant to the

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Court’s order of May 18, 2015; and

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3.

Plaintiff’s motion for return of his property is DENIED without prejudice; and

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4.

Plaintiff’s motion for appointment of counsel is DENIED without prejudice.

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IT IS SO ORDERED.
Dated:

December 1, 2015

/s/
UNITED STATES MAGISTRATE JUDGE