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)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LUIS VILLEGAS, 12 13 14 Plaintiff, v. ORDER DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL ECF No. 31 D. ROBERTS, et al., 15 Case No. 1:17-cv-01326-AWI-JDP Defendants. 16 ORDER REQUIRING PLAINTIFF TO FILE OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT TWENTY-ONE-DAY DEADLINE 17 18 19 Plaintiff Luis Villegas is a state prisoner proceeding without counsel in this civil rights 20 action brought under 42 U.S.C. § 1983. On March 5, 2019, defendant Medina moved for 21 summary judgment on the ground that plaintiff failed to exhaust his administrative remedies 22 before filing suit. Plaintiff had twenty-one days to oppose defendant’s motion under Local Rule 23 230(l), but he failed to do so. Instead of opposing defendant’s motion, plaintiff moved for the 24 appointment of counsel. ECF No. 31. 25 I. Motion to Appoint Counsel 26 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 27 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require that an attorney 28 represent plaintiff under 28 U.S.C. § 1915(e)(1), see Mallard v. United States District Court for 1 1 the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional 2 circumstances the court may request the voluntary assistance of counsel under § 1915(e)(1). 3 Rand, 113 F.3d at 1525. 4 Without a reasonable method of securing and compensating counsel, the court will seek 5 volunteer counsel only in the most serious and exceptional cases. In determining whether 6 exceptional circumstances exist, “a district court must evaluate both the likelihood of success on 7 the merits [and] the ability of the plaintiff to articulate his claims pro se in light of the complexity 8 of the legal issues involved.” Id. (internal quotation marks and citations omitted). Though 9 plaintiff lacks legal experience and has “decreased mental capabilities,” ECF No. 31 at 1, plaintiff 10 has not demonstrated that he is likely to succeed on the merits at this early stage in the 11 proceedings. Plaintiff’s request is therefore denied without prejudice. 12 13 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 14 of any opposition to the granting of the motion and may result in the imposition of sanctions.” 15 As a sanction, the court may treat the facts asserted by defendant as “undisputed for purposes of 16 the motion.” Fed. R. Civ. P. 56(e)(2). The court may also dismiss the case for plaintiff’s failure 17 to prosecute or failure to comply with a court order. 18 The court will allow plaintiff one more opportunity to oppose the motion for summary 19 judgment. Plaintiff must file a response to defendant’s motion for summary judgment, ECF No. 20 28, within twenty-one days of this order. If plaintiff fails to do so, the court will deem 21 defendant’s motion unopposed, which could result in granting the motion on the merits. See Fed. 22 R. Civ. P. 56(e)(3). Failure to comply with this order may also result in dismissal of this action. 23 III. 24 Accordingly, 25 1. Plaintiff’s motion to appoint counsel, ECF No. 31, is denied. 26 2. Plaintiff must respond to defendant Medina’s motion for summary judgment, ECF No. 27 28 Order 28, within twenty-one days of this order. 3. Failure to comply with this order may result in dismissal of this action. 2 1 2 IT IS SO ORDERED. 3 Dated: 4 April 3, 2019 UNITED STATES MAGISTRATE JUDGE 5 6 7 No. 203 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?