(PC) Fries v. Pfeiffer
Filing
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ORDER DENYING 19 Motion to Appoint Counsel and ORDER GRANTING Extension of Time to File Amended Complaint signed by Magistrate Judge Gary S. Austin on 11/17/2022. First Amended Complaint due by 12/21/2022. (Lawrence, A)
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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 EXTENSION OF
TIME TO FILE AMENDED COMPLAINT
PFEIFFER et al.,
Defendants.
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(ECF No. 19.)
DEADLINE TO FILE FIRST AMENDED
COMPLAINT: DECEMBER 21, 2022
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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 November 3, 2022, Plaintiff filed a motion appointment of
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counsel, or in the alternative, an extension of time to file his amended complaint. (ECF No. 19.)
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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 determining 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 litigation of this case. He asserts that
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he has never graduated from school and he requires counsel to assist him with presenting and
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obtaining facts and evidence supporting the legal issues in this complex and meritorious case.
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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 filed his
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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 an extension of time to file his First Amended Complaint. The Court finds
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good cause to grant Plaintiff an extension of time until December 21, 2022 in which to file the
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First Amended Complaint. Therefore, Plaintiff’s motion shall be granted.
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IV.
CONCLUSION
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Accordingly, THE COURT HEREBY ORDERS that:
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Plaintiff’s motion for appointment of counsel is DENIED, without prejudice; and
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Plaintiff is granted an extension of time until December 21, 2022 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:
November 17, 2022
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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