Matthew V. Salinas v. Pogue et al

Filing 36

ORDER Denying Motion for Appointment of Counsel, Granting Motion for Extension of Time, and Granting Request for Copy of Complaint; Sixty-Day Deadline to Either: (1) File Third Amended Complaint or (2) Notify the Court of Willingness to Proceed Only with Claims Found Cognizable by Court re 34 , 35 ; ORDER for Clerk to Send Plaintiff Copy of Second Amended Complaint and Exhibits re 29 , signed by Magistrate Judge Gary S. Austin on 11/8/17. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MATTHEW V. SALINAS,

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Plaintiff,

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vs.
KENNETH J. POGUE, et al.,

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Defendants.

1:16-cv-00520-GSA-PC
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL,
GRANTING MOTION FOR EXTENSION
OF TIME, AND GRANTING REQUEST
FOR COPY OF COMPLAINT
(ECF Nos. 34, 35.)
SIXTY-DAY DEADLINE TO EITHER:

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(1) FILE THIRD AMENDED
COMPLAINT

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OR

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(2) NOTIFY COURT OF
WILLINGNESS TO PROCEED
ONLY WITH CLAIMS FOUND
COGNIZABLE BY COURT

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ORDER FOR CLERK TO SEND
PLAINTIFF COPY OF SECOND
AMENDED COMPLAINT AND EXHIBITS
(ECF No. 29.)

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I.

BACKGROUND

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Matthew V. Salinas (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On April 14, 2016, Plaintiff

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filed the Complaint commencing this action. (ECF No. 1.)
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On August 19, 2016, Plaintiff consented to Magistrate Judge jurisdiction in this action

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pursuant to 28 U.S.C. § 636(c), and no other parties have made an appearance. (ECF No. 14.)

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Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of

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California, the undersigned shall conduct any and all proceedings in the case until such time as

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reassignment to a District Judge is required. Local Rule Appendix A(k)(3).

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On November 3, 2017, Plaintiff filed a motion for appointment of counsel. (ECF No.

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34.) On November 6, 2017, Plaintiff filed another motion for appointment of counsel, a motion

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for an extension of time, and a request for a copy of the Second Amended Complaint. (ECF

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No. 35.)

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II.

MOTION FOR 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

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

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circumstances the court may request the voluntary assistance of counsel pursuant to section

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

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this juncture, Plaintiff has been granted leave to either file a Third Amended Complaint or

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proceed with the claims found cognizable by the court in the Second Amended Complaint.

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Therefore, there is presently no complaint on file in this case with which to proceed, and the

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court cannot make a determination that Plaintiff is likely to succeed on the merits. Based on

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the record in this case, Plaintiff is able to adequately articulate his claims and respond to the

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court’s orders. Therefore, Plaintiff’s motion shall be denied, without prejudice to renewal of

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the motion at a later stage of the proceedings.

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III.

MOTION FOR EXTENSION OF TIME

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Plaintiff requests an extension of time to respond to the court’s September 21, 2017,

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order, which requires him to either file a Third Amended Complaint or proceed with the claims

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found cognizable by the court in the Second Amended Complaint. Plaintiff seeks additional

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time because he is a county jail inmate and has limited access to legal resources via the law

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library. Plaintiff explains that he is only permitted to request five legal resources per month.

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Plaintiff shows good cause for a sixty-day extension of time. Should Plaintiff require

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more time, he should file another request for extension of time before the prior deadline

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expires.

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IV.

REQUEST FOR COPY OF SECOND AMENDED COMPLAINT

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Plaintiff requests a free copy of his Second Amended Complaint. Plaintiff is advised

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that the Clerk does not ordinarily provide free copies of case documents to parties. The Clerk

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charges $.50 per page for copies of documents. See 28 U.S.C. ' 1914(a). Copies of up to

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twenty pages may be made by the Clerk’s Office at this court upon written request and

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prepayment of the copy fees. The fact that the court has granted leave for Plaintiff to proceed

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in forma pauperis does not entitle him to free copies of documents from the court.

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Plaintiff asserts that his copy of the Second Amended Complaint was lost when he

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accidentally left it at the “Rehab. New Life.” (ECF No. 35 at 2.) Plaintiff also asserts that he is

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indigent and cannot afford to pay the court’s copy fees.

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In this instance, the court shall make an exception and provide Plaintiff with a free copy

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of his Second Amended Complaint. Plaintiff is advised that in the future he should take

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care to retain copies of any documents he sends to the court.

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V.

CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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

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2.

Plaintiff’s motion for extension of time is GRANTED;
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3.

Within 60 days of the date of service of this order, Plaintiff shall respond to the

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court’s September 21, 2017, order by either:

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(1)

Filing a Third Amended Complaint, or

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(2)

Notifying the court that he is willing to proceed with the Second

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Amended Complaint on the claims found cognizable by the court;
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Plaintiff’s request for a free copy of his Second Amended Complaint is
GRANTED; and

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The Clerk is DIRECTED to send Plaintiff a copy of the Second Amended
Complaint and its exhibits, filed on February 22, 2017 (ECF No. 29).

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IT IS SO ORDERED.
Dated:

November 8, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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