(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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL FRIES, 12 Plaintiff, 13 vs. 14 15 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. 16 (ECF No. 17.) SIXTY-DAY DEADLINE TO FILE FIRST AMENDED COMPLAINT 17 18 19 20 I. BACKGROUND 21 Michael Fries (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights action 22 pursuant to 42 U.S.C. § 1983. On August 29, 2022, Plaintiff filed a motion for court-appointed 23 counsel, or in the alternative, for a 60-day extension of time to file his First Amended Complaint, 24 pursuant to the Court’s order issued on August 3, 2022. (ECF No. 17.) 25 II. MOTION FOR APPOINTMENT OF 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 an attorney to 28 represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court 1 1 for the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in 2 certain exceptional circumstances the court may request the voluntary assistance of counsel 3 pursuant to section 1915(e)(1). 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 d etermining whether 6 “exceptional circumstances exist, the district court must evaluate both the likelihood of success 7 of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 8 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 9 In the present case, the court does not find the required exceptional circumstances. 10 Plaintiff seeks appointment of counsel to assist him with filing his First Amended Complaint, 11 managing his chronic pain, proffering legal theories and recovering damages, obtaining his 12 medical records, compiling his appeals to present to the court, compiling forward-looking and 13 backward-looking access claims, addressing the interference with and seizure of his mail, 14 managing defenses regarding supervisor liability training, obtaining witness affidavits, and 15 overcoming false documentation of officials. 16 None of these circumstances is exceptional under the law. Plaintiff’s original complaint 17 was dismissed for violation of Rule 8(a), with leave to amend , and Plaintiff has not file an 18 amended complaint. Therefore, there is no viable complaint on file in this case, and the court 19 cannot determine whether Plaintiff’s case has merit. Plaintiff’s claims of retaliation, failure to 20 protect, mail tampering, confiscation of medical aids, and use of an improper appeals process are 21 not complex, and based on a review of the record in this case, Plaintiff can adequately articulate 22 his claims and respond to court orders. Thus, the Court does not find the required exceptional 23 circumstances, and Plaintiff’s motion for appointment of counsel shall be denied, without 24 prejudice to renewal of the motion at a later stage of the proceedings. 25 III. MOTION FOR EXTENSION OF TIME 26 Plaintiff seeks a 60-day extension of time to file his First Amended Complaint. The Court 27 finds good cause to grant Plaintiff a 60-day extension of time. Therefore, Plaintiff’s motion shall 28 be granted. 2 1 IV. CONCLUSION 2 Accordingly, THE COURT HEREBY ORDERS that: 3 1. Plaintiff’s motion for appointment of counsel is DENIED, without prejudice; 4 2. Plaintiff’s motion for extension of time, filed on August 29, 2022, is GRANTED; and 5 6 3. Plaintiff is granted 60 days from the date of service of this order in which to file 7 his First Amended Complaint, pursuant to the Court’s order issued on August 3, 8 2022. 9 10 11 12 IT IS SO ORDERED. Dated: September 15, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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