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)

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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

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