Villegas v. C.C.H.C.S. et al

Filing 32

ORDER Denying Plaintiff's 31 Motion to Appoint Counsel; ORDER Requiring Plaintiff to File Opposition to Defendant's Motion for Summary Judgment signed by Magistrate Judge Jeremy D. Peterson on 04/03/2019. Twenty-One Day Deadline. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LUIS VILLEGAS,

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Plaintiff,
v.

ORDER DENYING PLAINTIFF’S MOTION
TO APPOINT COUNSEL
ECF No. 31

D. ROBERTS, et al.,

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Case No. 1:17-cv-01326-AWI-JDP

Defendants.

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ORDER REQUIRING PLAINTIFF TO FILE
OPPOSITION TO DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT
TWENTY-ONE-DAY DEADLINE

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Plaintiff Luis Villegas is a state prisoner proceeding without counsel in this civil rights

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action brought under 42 U.S.C. § 1983. On March 5, 2019, defendant Medina moved for

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summary judgment on the ground that plaintiff failed to exhaust his administrative remedies

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before filing suit. Plaintiff had twenty-one days to oppose defendant’s motion under Local Rule

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230(l), but he failed to do so. Instead of opposing defendant’s motion, plaintiff moved for the

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appointment of counsel. ECF No. 31.

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I.

Motion to Appoint 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 that an attorney

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represent plaintiff under 28 U.S.C. § 1915(e)(1), see Mallard v. United States District Court for
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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 under § 1915(e)(1).

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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, “a district court must evaluate both the likelihood of success on

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

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

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plaintiff lacks legal experience and has “decreased mental capabilities,” ECF No. 31 at 1, plaintiff

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has not demonstrated that he is likely to succeed on the merits at this early stage in the

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proceedings. Plaintiff’s request is therefore denied without prejudice.

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II.

Failure to Oppose Defendant Medina’s Motion for Summary Judgment

Local Rule 230(l) provides that the failure to oppose a motion “may be deemed a waiver

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of any opposition to the granting of the motion and may result in the imposition of sanctions.”

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As a sanction, the court may treat the facts asserted by defendant as “undisputed for purposes of

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the motion.” Fed. R. Civ. P. 56(e)(2). The court may also dismiss the case for plaintiff’s failure

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to prosecute or failure to comply with a court order.

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The court will allow plaintiff one more opportunity to oppose the motion for summary

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judgment. Plaintiff must file a response to defendant’s motion for summary judgment, ECF No.

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28, within twenty-one days of this order. If plaintiff fails to do so, the court will deem

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defendant’s motion unopposed, which could result in granting the motion on the merits. See Fed.

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R. Civ. P. 56(e)(3). Failure to comply with this order may also result in dismissal of this action.

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III.

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Accordingly,

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1. Plaintiff’s motion to appoint counsel, ECF No. 31, is denied.

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2. Plaintiff must respond to defendant Medina’s motion for summary judgment, ECF No.

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Order

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3. Failure to comply with this order may result in dismissal of this action.
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IT IS SO ORDERED.

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Dated:
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April 3, 2019
UNITED STATES MAGISTRATE JUDGE

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No. 203

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