Hansen v. Nkwocha

Filing 24

ORDER Denying 23 Motion for Appointment of Counsel and Granting Motion for Extension of Time signed by Magistrate Judge Gary S. Austin on 06/08/2017. (Flores, E)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

STEVEN HANSEN,

12

Plaintiff,

13

vs.

14

1:15-cv-01665-GSA-PC
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL AND
GRANTING MOTION FOR
EXTENSION OF TIME

P. NKWOCHA,

15

Defendant.

(ECF No. 23.)
THIRTY-DAY DEADLINE TO FILE
OBJECTIONS

16
17
18
19
20
21

Steven Hansen (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

22

with this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint

23

commencing this action on November 2, 2015. (ECF No. 1.) This case now proceeds with

24

Plaintiff’s First Amended Complaint filed on February 29, 2016, against sole defendant

25

Custody Officer Philip Nkwocha (“Defendant”), on Plaintiff’s retaliation claim under the First

26

Amendment. (ECF No. 7.)

27
28

On May 12, 2017, Plaintiff filed a motion for appointment of counsel and a motion for
extension of time. (ECF No. 23.)

1

I.

2

Plaintiff requests court-appointed counsel to assist him with this litigation. Plaintiff

3

does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113

4

F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent Plaintiff

5

pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern

6

District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the

7

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

8

113 F.3d at 1525.

APPOINTMENT OF COUNSEL

9

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

10

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

11

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

12

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

13

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

14

In the present case, the court does not find the required exceptional circumstances. On

15

April 25, 2017, the court entered findings and recommendations, recommending that summary

16

judgment be granted against Plaintiff in this case on the ground that Plaintiff failed to exhaust

17

his administrative remedies. (ECF No. 22.) Based on the findings and recommendations, the

18

court has determined that Plaintiff is unlikely to succeed on the merits. Moreover, a review of

19

the record shows that Plaintiff is responsive, adequately communicates, and is able to articulate

20

his claims pro se. Therefore, Plaintiff's motion shall be denied, without prejudice to renewal of

21

the motion at a later stage of the proceedings.

22

II.

23

Plaintiff requests a ninety-day extension of time to file objections to the court’s findings

24

and recommendations, asserting that the mail is slow and does not allow him enough time to

25

respond. The court finds good cause to grant Plaintiff a thirty-day extension of time to file

26

objections.

27

///

28

///

EXTENSION OF TIME

1

III.

2

Based on the foregoing, IT IS HEREBY ORDERED that:

3

1.

4
5

CONCLUSION

Plaintiff’s motion for appointment of counsel is DENIED, without prejudice;
and

2.

6

Plaintiff is GRANTED thirty days from the date of service of this order in which
to file objections to the findings and recommendations issued on April 25, 2017.

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

IT IS SO ORDERED.
Dated:

June 8, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE