(PC) Fries v. Pfeiffer

Filing 18

ORDER DENYING 17 Motion to Appoint Counsel ; ORDER GRANTING 17 Motion for Extension of Time, signed by Magistrate Judge Gary S. Austin on 09/15/2022. ( First Amended Complaint due within 60-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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MICHAEL FRIES,

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Plaintiff,

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vs.

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1:22-cv-00380-ADA-GSA-PC
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
ORDER GRANTING MOTION FOR
EXTENSION OF TIME

PFEIFFER et al.,
Defendants.

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(ECF No. 17.)
SIXTY-DAY DEADLINE TO FILE FIRST
AMENDED COMPLAINT

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I.

BACKGROUND

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Michael Fries (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights action

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pursuant to 42 U.S.C. § 1983. On August 29, 2022, Plaintiff filed a motion for court-appointed

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counsel, or in the alternative, for a 60-day extension of time to file his First Amended Complaint,

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pursuant to the Court’s order issued on August 3, 2022. (ECF No. 17.)

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II.

MOTION FOR APPOINTMENT OF 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 an attorney to

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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, 109 S.Ct. 1814, 1816 (1989). However, in

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certain exceptional circumstances the court may request the voluntary assistance of counsel

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pursuant to section 1915(e)(1). 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 d etermining whether

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“exceptional circumstances exist, the district court must evaluate both the likelihood of success

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

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

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In the present case, the court does not find the required exceptional circumstances.

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Plaintiff seeks appointment of counsel to assist him with filing his First Amended Complaint,

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managing his chronic pain, proffering legal theories and recovering damages, obtaining his

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medical records, compiling his appeals to present to the court, compiling forward-looking and

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backward-looking access claims, addressing the interference with and seizure of his mail,

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managing defenses regarding supervisor liability training, obtaining witness affidavits, and

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overcoming false documentation of officials.

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None of these circumstances is exceptional under the law. Plaintiff’s original complaint

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was dismissed for violation of Rule 8(a), with leave to amend , and Plaintiff has not file an

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amended complaint. Therefore, there is no viable complaint on file in this case, and the court

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cannot determine whether Plaintiff’s case has merit. Plaintiff’s claims of retaliation, failure to

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protect, mail tampering, confiscation of medical aids, and use of an improper appeals process are

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not complex, and based on a review of the record in this case, Plaintiff can adequately articulate

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his claims and respond to court orders. Thus, the Court does not find the required exceptional

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circumstances, and Plaintiff’s motion for appointment of counsel shall be denied, without

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prejudice to renewal of the motion at a later stage of the proceedings.

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III.

MOTION FOR EXTENSION OF TIME

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Plaintiff seeks a 60-day extension of time to file his First Amended Complaint. The Court

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finds good cause to grant Plaintiff a 60-day extension of time. Therefore, Plaintiff’s motion shall

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be granted.
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IV.

CONCLUSION

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Accordingly, THE COURT HEREBY ORDERS that:

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1.

Plaintiff’s motion for appointment of counsel is DENIED, without prejudice;

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2.

Plaintiff’s motion for extension of time, filed on August 29, 2022, is GRANTED;
and

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3.

Plaintiff is granted 60 days from the date of service of this order in which to file

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his First Amended Complaint, pursuant to the Court’s order issued on August 3,

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2022.

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IT IS SO ORDERED.
Dated:

September 15, 2022

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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