Olive v. Narayan

Filing 29

ORDER GRANTING 28 Motion to Withdraw and DENYING 28 Motion to Appoint Counsel; ORDER WITHDRAWING Plaintiff's Opposition Filed February 28, 2017, signed by Magistrate Judge Gary S. Austin on 5/8/17. (Marrujo, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAMIEN DWAYNE OLIVE, 12 Plaintiff, 13 1:15-cv-01645-GSA-PC ORDER GRANTING MOTION TO WITHDRAW AND DENYING MOTION FOR APPOINTMENT OF COUNSEL (ECF No. 28.) vs. 14 PRATAP LAKSHMI NARAYAN, 15 Defendant. 16 ORDER WITHDRAWING PLAINTIFF’S OPPOSITION FILED FEBRUARY 28, 2017 (ECF No. 20.) 17 18 19 I. BACKGROUND 20 Damien Dwayne Olive (“Plaintiff”) is a state prisoner proceeding pro se and in forma 21 pauperis with this civil rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint 22 commencing this action on October 30, 2015. (ECF No. 1.) This action now proceeds with the 23 First Amended Complaint filed on April 28, 2016, against sole defendant Dr. Pratap Lakshmi 24 Narayan (“Defendant”), on Plaintiff’s Eighth Amendment medical claim. (ECF No. 11.) 25 On January 26, 2017, Defendant filed a motion to dismiss, which is pending. (ECF No. 26 17.) On February 28, 2017, Plaintiff filed an opposition to the motion. (ECF No. 20.) On 27 April 13, 2017, the court issued an order permitting Plaintiff to withdraw his opposition and file 28 an amended opposition. (ECF No. 24.) On May 5, 2017, Plaintiff filed an amended 1 1 opposition, a motion to withdraw his previous opposition, and a motion for appointment of 2 counsel. (ECF No. 28.) 3 II. MOTION TO WITHDRAW 4 Pursuant to the court’s order of April 13, 2017, Plaintiff has filed an amended 5 opposition to Defendant’s motion to dismiss and a motion to withdraw his previous opposition 6 filed on February 28, 2017. The motion to withdraw is granted, and Plaintiff’s previous 7 opposition shall be withdrawn. 8 III MOTION FOR APPOINTMENT OF COUNSEL 9 Plaintiff requests appointment of counsel. Plaintiff does not have a constitutional right 10 to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and 11 the court cannot require an attorney to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). 12 Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298 13 (1989). However, in certain exceptional circumstances the court may request the voluntary 14 assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 15 Without a reasonable method of securing and compensating counsel, the court will seek 16 volunteer counsel only in the most serious and exceptional cases. In determining whether 17 “exceptional circumstances exist, the district court must evaluate both the likelihood of success 18 of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 19 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 20 In the present case, the court does not find the required exceptional circumstances. At 21 this stage in the proceedings, the court cannot make a determination that Plaintiff is likely to 22 succeed on the merits; Defendant’s motion to dismiss for failure to exhaust administrative 23 remedies and failure to state a claim is now pending and may dispose of the case. Moreover, 24 based on the record in this case, Plaintiff is able to adequately articulate his claims. Further, the 25 legal issue in this case B whether Defendant was deliberately indifferent to Plaintiff’s medical 26 needs B is not complex. Therefore, Plaintiff=s motion for counsel shall be denied without 27 prejudice to renewal of the motion at a later stage of the proceedings. 28 /// 2 1 IV. CONCLUSION 2 Based on the foregoing, it is HEREBY ORDERED that: 3 1. 4 5 Defendant’s motion to dismiss is GRANTED; 2. 6 7 Plaintiff’s motion to withdraw his opposition and file an amended opposition to Plaintiff’s opposition to Defendant’s motion to dismiss, filed on February 28, 2017, is WITHDRAWN; and 3. 8 Plaintiff’s motion for appointment of counsel is DENIED, without prejudice to renewal of the motion at a later stage of the proceedings. 9 10 11 12 IT IS SO ORDERED. Dated: May 8, 2017 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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