Katyal v. Donahoe et al

Filing 22

ORDER signed by Magistrate Judge Edmund F. Brennan on 4/13/17 ORDERING that Plaintiff's motion for appointment of counsel (ECF No. 21 ) is DENIED; the hearing on defendant's motion for summary judgment (ECF No. 13 ) is CONTINUED to 5/ 24/17; Plaintiff shall file either an opposition or statement of non-opposition to the motion no later than 5/10/17; Failure to file an opposition to the motion will be deemed a statement of non-opposition thereto, and will result in a recommendati on that defendant's motion be granted and/or the action be dismissed for lack of prosecution and/or for failure to comply with court orders and this court's Local Rules; Defendant may file a reply to plaintiff's opposition, if any, on or before 5/17/17. (Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PRASHANT KATYAL,

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No. 2:15-cv-1021-TLN-EFB PS

Plaintiff,
v.

ORDER

MEGAN J. BRENNAN, Postmaster
General, United States Postal Service,
Defendant.

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Defendant filed a motion for summary judgment, which was originally noticed for hearing

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on January 25, 2016. ECF No. 13. Plaintiff was granted two extensions of time to respond to

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that motion, which is currently set for hearing on April 26, 2017. ECF Nos. 18, 20. However, the

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time to respond has expired and he has still not filed either an opposition or a statement of no

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opposition to the motion. On March 30, 2017, rather than filing a response to the pending

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motion, plaintiff filed a request for appointment of counsel. ECF No. 21. He contends that he

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needs counsel because he is no longer able to represent himself due to an unspecified medical

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condition. Id.

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28 U.S.C. § 1915(e)(1) authorizes the appointment of counsel to represent an indigent

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civil litigant in certain exceptional circumstances. See Terrell v. Brewer, 935 F.2d 1015, 1017

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(9th Cir.1991); Wood v. Housewright, 900 F.2d 1332, 1335–36 (9th Cir.1990); Richards v.
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Harper, 864 F.2d 85, 87 (9th Cir.1988). In considering whether exceptional circumstances exist,

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the court must evaluate (1) the plaintiff’s likelihood of success on the merits; and (2) the ability of

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the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved.

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Terrell, 935 F.2d at 1017. The court cannot conclude that plaintiff’s likelihood of success, the

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complexity of the issues, or the degree of plaintiff’s ability to articulate his claims amount to

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exceptional circumstances justifying the appointment of counsel at this time. Accordingly, the

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motion for appointment of counsel is denied.

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In light of plaintiff’s failure to file a response to defendant’s motion for summary

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judgment, the hearing on the motion will be continued and plaintiff is granted one last extension

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of time to file an opposition to the pending motion. Plaintiff is admonished that no further

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extensions will be granted.

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Accordingly, it is hereby ORDERED that:

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1. Plaintiff’s motion for appointment of counsel (ECF No. 21) is denied.

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2. The hearing on defendant’s motion for summary judgment (ECF No. 13) is continued

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to May 24, 2017.
3. Plaintiff shall file either an opposition or statement of non-opposition to the motion no
later than May 10, 2017.
4. Failure to file an opposition to the motion will be deemed a statement of non-

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opposition thereto, and will result in a recommendation that defendant’s motion be granted and/or

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the action be dismissed for lack of prosecution and/or for failure to comply with court orders and

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this court’s Local Rules. See Fed. R. Civ. P. 41(b).

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5. Defendant may file a reply to plaintiff’s opposition, if any, on or before May 17, 2017.
DATED: April 13, 2017.

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