Trotter v. Pfeiffer

Filing 46

ORDER Granting Plaintiff's 44 Motion for Extension of Time to File Second Amended Complaint and Denying, without Prejudice, Plaintiff's Motion for Appointment of Counsel 45 , signed by Magistrate Judge Barbara A. McAuliffe on 8/13/19. Amended Complaint Due Within Thirty Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES TROTTER,

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Plaintiff,

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v.
WARDEN PFEIFFER, et al.

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ORDER GRANTING PLAINTIFF’S MOTION
FOR EXTENSION OF TIME TO FILE
SECOND AMENDED COMPLAINT AND
DENYING, WITHOUT PREJUDICE,
PLAINTIFF’S MOTION FOR
APPOINTMENT OF COUNSEL

Defendants.
(ECF Nos. 44, 45)

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Plaintiff James Trotter is a state prisoner proceeding pro se and in forma pauperis in this

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Case No. 1:18-cv-00259-BAM (PC)

civil rights action pursuant to 42 U.S.C. § 1983.

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Currently before the Court are Plaintiff’s motion for an extension of time to file a second

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amended complaint and Plaintiff’s motion to appoint counsel, both filed on August 9, 2019. (ECF

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Nos. 44, 45.)

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I.

Plaintiff’s Motion for an Extension of Time to File Second Amended Complaint

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On July 3, 2019, the Court issued a screening order finding that Plaintiff’s first amended

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complaint fails to comply with Federal Rule of Civil Procedure 8 and fails to state any cognizable

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claim for relief. (ECF No. 37.) The Court granted Plaintiff thirty days to either file a second

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amended complaint or a notice of voluntary dismissal. (Id. at 15-16.)

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On August 9, 2019, Plaintiff filed a motion for an extension of time to file a second amended

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complaint. (ECF No. 44.) In his motion, Plaintiff asserts that he needs additional time to prepare
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and file a second amended complaint because, due to overcrowding and lockdowns, he has very

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limited access to the law library.

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Having considered the request, the Court finds that Plaintiff has established good cause to

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grant an extension of time to file a second amended complaint. Fed. R. Civ. P. 6(b). Therefore,

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the Court grants Plaintiff’s motion for an extension of time.

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II.

Plaintiff’s Motion for Appointment of Counsel

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On August 9, 2019, Plaintiff filed a motion for appointment of counsel. (ECF No. 45.) In

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his motion, Plaintiff asserts that, since he is indigent and unable to afford counsel, he is requesting

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the appointment of counsel so that his interests “may be protected by the professional assistance

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required.” (Id.)

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The Court notes that Plaintiff does not have a constitutional right to appointed counsel in

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

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

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

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exceptional circumstances, the Court may request the voluntary assistance of counsel pursuant to §

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1915(e)(1). Rand, 113 F.3d at 1525. Without a reasonable method of securing and compensating

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counsel, the Court will seek volunteer counsel only in the most serious and exceptional cases. In

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determining whether “exceptional circumstances exist, the district court must evaluate both the

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

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

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omitted). “Neither of these considerations is dispositive and instead must be viewed together.”

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Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). The burden of demonstrating exceptional

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circumstances is on Plaintiff. Id.

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However, circumstances common to most prisoners, such as lack of legal education, limited

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law library access, and lack of funds to hire counsel, do not alone establish the exceptional

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circumstances that would warrant granting a request for voluntary assistance of counsel. Further,

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having considered the factors under Palmer, the Court finds that Plaintiff has failed to meet his

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burden of demonstrating exceptional circumstances warranting the appointment of counsel at this
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time. Therefore, Plaintiff’s motion for appointment of counsel is denied, without prejudice.

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III.

Order

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Accordingly, it is HEREBY ORDERED that:

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1.

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Plaintiff’s motion for an extension of time to file a second amended complaint, (ECF
No. 44), is GRANTED;

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Within thirty (30) days from the date of service of this order, Plaintiff shall file a

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second amended complaint curing the deficiencies identified in the Court’s July 3,

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2019 screening order, or file a notice of voluntary dismissal;

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3.

If Plaintiff fails to file a second amended complaint, the Court will recommend to

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the District Judge that this action be dismissed for failure to state a claim, failure to

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prosecute, and failure to obey a court order; and

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4.

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Plaintiff’s motion for appointment of counsel, (ECF No. 45), is DENIED, without
prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

August 13, 2019

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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