Chase v. Lopez

Filing 14

ORDER DENYING Plaintiff's 13 Motion to Appoint Counsel ; ORDER GRANTING Extension of Time to File Third Amended Complaint 13 , signed by Magistrate Judge Erica P. Grosjean on 9/16/16. (30-Day Deadline) (Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL Plaintiff, 13 14 1:14-cv-01853-EPG (PC) KENNY CHASE, v. ORDER GRANTING EXTENSION OF TIME TO FILE AMENDED COMPLAINT J. LOPEZ, 15 (ECF No. 13.) Defendant. 16 17 18 19 20 21 On September 12, 2016, plaintiff filed a motion seeking the appointment of counsel and a motion for extension of time. (ECF No. 13.) I. 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 an attorney to 22 represent plaintiff pursuant to 28 U.S.C. ' 1915(e)(1). Mallard v. United States District Court for 23 the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in 24 certain exceptional circumstances the Court may request the voluntary assistance of counsel 25 pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 26 27 28 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 1 1 Aexceptional circumstances exist, the district court must evaluate both the likelihood of success of 2 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 3 complexity of the legal issues involved.@ Id. (internal quotation marks and citations omitted). 4 Plaintiff argues that he needs counsel because he “really doesn’t understand this legal 5 mail.” (ECF No. 13 at 1.) Plaintiff also submits copies of medical records showing that he 6 suffered injuries on July 23, 2016 including a scratch, scrape, dried blood, and swelling due to 7 exposure to pepper spray. (ECF No. 13 at 12-13.) These conditions alone do not make Plaintiff’s 8 case exceptional under the Ninth Circuit’s standards discussed above. At this early stage in the 9 proceedings, the Court cannot make a determination that Plaintiff is likely to succeed on the 10 merits. Plaintiff=s Second Amended Complaint was dismissed on August 1, 2016, for failure to 11 state a claim, with leave to amend. To date, Plaintiff has not filed a Third Amended Complaint. 12 Thus, there is no complaint on record in this case for which the Court has found cognizable 13 claims. Moreover, based on the record in this case, the Court finds that Plaintiff can adequately 14 articulate his claims and respond to court orders. Plaintiff is advised that he is not precluded from 15 renewing the motion for appointment of counsel at a later stage of the proceedings. For the foregoing reasons, plaintiff=s motion for the appointment of counsel shall be 16 17 denied, without prejudice. 18 II. Plaintiff requests an extension of time but does not indicate what deadline he wishes to 19 20 MOTION FOR EXTENSION OF TIME extend or why he needs an extension of time. Plaintiff merely states, “If I am late sending this 21 back in can I get extension date?” (ECF No. 13 at 1.) Plaintiff has not shown good cause for the 22 Court to grant him an extension of time. In the future, plaintiff must provide more information in 23 his motions, clarifying what relief he seeks and why. 24 In light of the fact that plaintiff’s only pending deadline in this case is to file a Third 25 Amended Complaint, the Court shall allow plaintiff additional time to do so. However, no further 26 extensions of time shall be granted without a showing of good cause. 27 \\\ 28 \\\ 2 1 III. CONCLUSION 2 Based on the foregoing, IT IS HEREBY ORDERED that: 3 1. Plaintiff’s motion for appointment of counsel is DENIED, without prejudice; 4 2. Plaintiff is GRANTED thirty days from the date of service of this order in which 5 to file a Third Amended Complaint, pursuant to the Court’s order of August 1, 6 2016; and 7 3. 8 No further extensions of time shall be granted without a showing of good cause. 9 10 11 IT IS SO ORDERED. Dated: September 16, 2016 /s/ UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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