Jacobsen v. Curran et al

Filing 49

ORDER DENYING Motion for Appointment of Counsel 47 ; ORDER GRANTING IN PART Motion for Extension of Time and Request for Copies 48 , signed by Magistrate Judge Michael J. Seng on 1/23/2018: 45-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL NEIL JACOBSEN,

CASE No. 1:16-cv-01050-AWI-MJS (PC)

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Plaintiff,

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v.

(ECF No. 47)

OFFICER CURRAN, et al.,
Defendants.

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ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

ORDER GRANTING IN PART MOTION
FOR EXTENSION OF TIME AND
REQUEST FOR COPIES

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(ECF No. 48)

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FORTY-FIVE DAY DEADLINE

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Plaintiff is a county inmate proceeding pro se and in forma pauperis in this civil

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rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds on Plaintiff’s

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first amended complaint against Defendants Curran and Gonzalez for inadequate

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medical care in violation of the Eighth Amendment of the United States Constitution.

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(ECF No. 11.)

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Before the Court are Plaintiff’s motion for appointment of counsel (ECF No. 47);

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and his motion requesting an extension of time to file opposition to Defendants’ motions

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for summary judgment and requesting copies of Defendants’ motions. (ECF No. 48.)

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I.

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Appointment of Legal Counsel
Plaintiff has filed a motion requesting the appointment of legal counsel. (ECF No.

47.)

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Plaintiff does not have a constitutional right to appointed counsel in this action,

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Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an

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attorney to represent Plaintiff pursuant to 28 U.S.C. ' 1915(e)(1), Mallard v. United

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States District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). In

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certain exceptional circumstances the court may request the voluntary assistance of

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counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. However, without a

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reasonable method of securing and compensating counsel, the Court will seek volunteer

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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

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

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light of the complexity of the legal issues involved. Id. (internal quotation marks and

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citations omitted).

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In the present case, the Court does not find the required exceptional

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circumstances. Even though Plaintiff’s motion reflects that he has significant personal

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challenges and that he has made serious allegations which, if proved, would entitle him

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to relief, his case is not exceptional. This Court is faced with similar cases almost daily.

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Further, the Court cannot make a determination that Plaintiff is likely to succeed on the

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merits. And, based on a review of the record in this case, even though the issues are

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complex, the court does not find that Plaintiff cannot adequately articulate his claims. Id.

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Accordingly this motion will be DENIED.

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II.

Copies

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Plaintiff requests a copy of Defendants’ motions for summary judgment (ECF Nos.

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35, 38) so that he can prepare a response. (ECF No. 48.) Plaintiff reportedly has had

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difficulties maintaining copies of legal documents because of his frequent moves in and

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out of custody during this litigation. The Court has, on occasion, provided Plaintiff with
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copies of court orders and of documents Plaintiff himself filed. (See ECF Nos. 10, 39.)

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Defendants have been asked, as a courtesy, to re-serve Plaintiff in the past.

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Plaintiff is reminded of his obligation to keep the Court and defense counsel

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advised of his current address. His failure to do so has resulted in unnecessary

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expenditure of court resources and caused the defense to take on additional burdens

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simply to accommodate Plaintiff.

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As Plaintiff was advised, “[t]he Court will not make copies of filed documents . . .

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for free even for parties proceeding in forma pauperis.” (ECF No. 3.) His request for

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Court copies will be denied. However, as an accommodation and believing it to be

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interest of all to see the pending motions addressed on the merits rather than by default,

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the Court will ask each of the two defense counsel to re-serve an additional copy of his

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or her summary judgment motion papers on Plaintiff at his current address within seven

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days of the date of this order.

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No further such requests will be granted or accommodated.

It is Plaintiffs

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responsibility to ensure mail reaches him. If he fails to do so, he, not the Court or

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defendants, will bear the consequences.

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III.

Extension of time

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Plaintiff requests an extension of time to reply to Defendants’ motions for

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summary judgment. (ECF No. 48.) Plaintiff states that he lacks a permanent address and

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this makes timely responding to Court deadlines challenging.

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The Court will allow Plaintiff forty-five more days to respond. He may expect that

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no further extensions will be granted. Plaintiff’s opposition has been pending for three

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months. Regardless of Plaintiff’s circumstances, the Court cannot and will not continue

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to delay this case further. Plaintiff must do what is necessary to see that he complies

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with his obligations in this case in a timely manner or he will see his case dismissed..

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IV.

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Conclusion and Order
Accordingly, for the foregoing reasons, it is HEREBY ORDERED THAT:

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Plaintiff’s motion (ECF No. 47) for appointment of counsel is
DENIED;

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2.

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Plaintiff’s motion (ECF No. 48) for copies and extension of time is
GRANTED IN PART AND DENIED IN PART as stated herein;

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3.

The Court requests that each defense counsel re-serve an

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additional copy of the motions for summary judgment on Plaintiff

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within seven days of the date of this order;

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4.

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Plaintiff shall file an opposition or statement of non-opposition to the
motions within forty-five days of the date of this order;

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5.

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Plaintiff’s failure to comply with this order may result in dismissal of
the action for failure to obey a court order and failure to prosecute.

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IT IS SO ORDERED.
Dated:

January 23, 2018

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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