Neale v. Sherman et al
Filing
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ORDER DENYING 17 Motion to Appoint Counsel and ORDER GRANTING an Extension of Time to File Objections to Findings and Recommendations, signed by Magistrate Judge Barbara A. McAuliffe on 4/19/19. (21-Day Deadline) (Martin-Gill, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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No.: 1:18-cv-00342-DAD-BAM (PC)
JOSEPH NEALE, JR.,
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL AND
GRANTING AN EXTENSION OF TIME TO
FILE OBJECTIONS TO FINDINGS AND
RECOMMENDATIONS
Plaintiff,
v.
STU SHERMAN, et al.,
(ECF No. 17)
Defendant(s).
TWENTY-ONE (21) DAY DEADLINE
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Plaintiff Joseph Neale, Jr. is a state prisoner proceeding pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. ' 1983.
On February 6, 2019, the Court issued findings and recommendations to dismiss this
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action, with prejudice, for the failure to state a claim upon which relief may be granted. (ECF
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No. 14.) Plaintiff was given fourteen (14) days to file objections to those findings and
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recommendations. (Id.) On March 6, 2019, the Court granted Plaintiff’s motion for extension of
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time to file objections. (ECF Nos. 15, 16.) Plaintiff was granted 30 additional days from the date
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of service of the order to file his objections to the February 6, 2019 findings and
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recommendations. (ECF No. 16.)
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Currently before the Court is Plaintiff’s motion for appointment of counsel, filed on April
12, 2019. (ECF No. 17.) Plaintiff contends that the Court should appoint counsel to represent
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him because, due to the disruption at California Substance Abuse Treatment Facility and State
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Prison, Corcoran caused by a mass institutional search and the unexpected death of an inmate in
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Plaintiff’s dorm, Plaintiff has not been able to concentrate and perform the necessary research and
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investigation needed to organize his thoughts and write and file objections to the findings and
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recommendations.
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However, 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 any attorney
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to 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). Nevertheless, 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. 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).
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Initially, the Court notes that Plaintiff has failed to demonstrate that it is likely that he will
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succeed on the merits of his claims. Further, the record reflects that Plaintiff can adequately
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articulate his claims and that the issues raised in this case are not particularly complex.
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Therefore, the Court fails to find the exceptional circumstances necessary to justify granting a
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request for voluntary assistance of counsel. Accordingly, the Court denies Plaintiff’s motion for
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appointment of counsel.
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Nevertheless, in light of Plaintiff’s pro se status and in order to allow time for Plaintiff to
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receive the Court’s order, the Court finds that it is in the interests of justice to grant Plaintiff an
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extension of twenty-one (21) days to file his objections to the February 6, 2019 findings and
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recommendations. Any future requests for an extension of time should present good cause, and
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requests based on the same grounds presented here will not be considered sufficient good cause
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for a further extension of this deadline.
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Based on the foregoing, it is HEREBY ORDERED that:
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1.
Plaintiff’s motion for appointment of counsel, (ECF No. 17), is DENIED;
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2.
In the interests of justice, Plaintiff is granted an extension of time to file objections
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to the February 6, 2019 findings and recommendations; and
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Plaintiff shall file his objections to the February 6, 2019 findings and
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recommendations within twenty-one (21) days from the date of service of this
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order.
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IT IS SO ORDERED.
Dated:
/s/ Barbara
April 19, 2019
A. McAuliffe
_
UNITED STATES MAGISTRATE JUDGE
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