Thomas v. Ogbehi et al
Filing
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ORDER DENYING Plaintiff's Motion for the Appointment of Counsel Without Prejudice; ORDER GRANTING Plaintiff's Request for Extension of Time to File Amended Complaint 30 , signed by Magistrate Judge Barbara A. McAuliffe on 10/13/16: 45-Day Deadline. (Attachments: # 1 Amended Complaint - blank form) (Hellings, J)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JOSH THOMAS,
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Plaintiff,
v.
C. OGBEHI, et al.,
Defendants.
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1:15-cv-01059-LJO-BAM (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR THE APPOINTMENT OF COUNSEL
WITHOUT PREJUDICE
ORDER GRANTING PLAINTIFF’S
REQUEST FOR EXTENSION OF TIME TO
FILE AMENDED COMPLAINT
(ECF No. 30)
FORTY-FIVE DAY DEADLINE
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Plaintiff Josh Thomas (“Plaintiff”), is a state prisoner proceeding pro se and in forma
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pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action
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on July 10, 2015. He filed a First Amended Complaint on May 5, 2016. On July 22, 2016, the
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Court screened his First Amended Complaint and dismissed it with leave to amend.
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On August 19, 2016, Plaintiff filed a document entitled, “En Banc Objection to the Order
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Dismissing First Amended Complaint.” (ECF No. 27). The Court construed the filing as a
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motion for reconsideration. On August 25, 2016, the District Court denied the motion for
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reconsideration, and granted Plaintiff a forty-five (45) day extension of time to file his amended
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complaint.
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On September 30, 2016, Plaintiff filed the instant motion for an extension of time, along
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with a request for the appointment of counsel. Plaintiff explains that he is recovering from
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treatment of a medical condition, while also suffering depression and some cognitive loss.
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Plaintiff also indicates that he lacks access to the law library and is prosecuting another civil
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action. Plaintiff therefore requests the appointment of counsel to assist him, along with a forty-
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five (45) day extension of time to file his amended complaint.
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Appointment of Counsel
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Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.
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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to
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represent plaintiff pursuant to 28 U.S.C. §1915(e)(1). Mallard v. United States District Court for
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the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in
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certain exceptional circumstances the court may request the voluntary assistance of counsel
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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
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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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Here, the Court does not find the requisite exceptional circumstances. Although Plaintiff
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asserts that he is recovering from medical treatment and suffers from depression and some
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cognitive loss, he has not provided the Court with evidence of his current medical and mental
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conditions. Further, Plaintiff has not explained how his conditions prevent him from prosecuting
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this action. The record demonstrates that Plaintiff can adequately articulate his claims and
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position in this matter. Indeed, Plaintiff successfully appealed the initial dismissal of this action.
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Accordingly, Plaintiff’s motion for appointment of counsel shall be denied.
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Extension of Time
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If Plaintiff requires additional time to comply with relevant deadlines and court orders
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because of limited law library access or other good cause, then he may seek appropriate
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extensions of time. In this instance, the Court will grant Plaintiff’s request for an additional
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forty-five (45) days to file his amended complaint.
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For the reasons stated, IT IS HEREBY ORDERED as follows:
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1. Plaintiff’s motion for the appointment of counsel, filed on September 30, 2016, is
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DENIED without prejudice.
2. Plaintiff’s motion for an extension of time to file an amended complaint is
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GRANTED;
3. Plaintiff’s second amended complaint shall be filed within forty-five (45) days after
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service of this order; and
4. If Plaintiff fails to comply with this order, the Court may recommend dismissal of this
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action for failure to obey a court order and failure to prosecute.
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IT IS SO ORDERED.
Dated:
/s/ Barbara
October 13, 2016
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A. McAuliffe
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UNITED STATES MAGISTRATE JUDGE
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