Scally v. Ferrara et al

Filing 35

ORDER signed by Magistrate Judge Craig M. Kellison on 8/10/2018 DENYING 29 and 31 Requests for the Appointment of Counsel; GRANTING 30 Motion for Extension of Time; and STRIKING as defective and premature 32 Motion for Summary Judgment. Plai ntiff to file a second amended complaint within 30 days of the date of this order. Clerk of Court to randomly assign a District Judge and update the docket to reflect the new case number. The new case number is: 2:15-cv-2528 MCE CMK (PC). (Henshaw, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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STEPHEN EARL SCALLY,

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No. 2:15-CV-2528-CMK-P

Plaintiff,
vs.

ORDER

THOMAS A. FERRARA, et al.,

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Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Pending before the court are: (1) plaintiff’s motions for the appointment of

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counsel (Docs. 29 and 31)1; (2) plaintiff’s motion for an extension of time to file a second

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amended complaint (Doc. 30); and (3) plaintiff’s motion for summary judgment (Doc. 32).

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The United States Supreme Court has ruled that district courts lack authority to

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require counsel to represent indigent prisoners in § 1983 cases. See Mallard v. United States

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Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may

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request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v.

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Plaintiff’s request for reconsideration of a prior order denying counsel will be
addressed separately.
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Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36

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(9th Cir. 1990). A finding of “exceptional circumstances” requires an evaluation of both the

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likelihood of success on the merits and the ability of the plaintiff to articulate his claims on his

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own in light of the complexity of the legal issues involved. See Terrell, 935 F.2d at 1017.

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Neither factor is dispositive and both must be viewed together before reaching a decision. See

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id.

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In the present case, the court does not at this time find the required exceptional

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circumstances. Specifically, because plaintiff has not yet complied with this court’s order to file

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a second amended complaint, it is impossible to evaluate the likelihood of success on the merits

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of plaintiff’s claims. Because the court cannot make this necessary determination, the court is

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also unable to find that exceptional circumstances exist warranting the appointment of counsel at

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this time. Plaintiff’s motions for the appointment of counsel will, therefore, be denied.

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Plaintiff’s seeks an extension of time to file a second amended complaint. Good
cause appearing therefor, plaintiff’s request will be granted.
Plaintiff has filed a motion entitled “Motion for Summary Judgment and Notice

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for Summary Adjudication.” The motion is defective and premature. It is defective in that it

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does not comply with the procedural requirements of Federal Rule of Civil Procedure 56(c)(1)

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because the motion contains citations to particular evidence in the record showing that there are

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no genuine disputes of material fact. This defect also violates Eastern District of California

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Local Rule 260(a). The motion is premature in that it has been filed before the case has been put

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at issue with the filing of an answer and before any discovery has been conducted. Plaintiff’s

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motion will be stricken.

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Finally, pursuant to Eastern District of California Local Rules, this case was not

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assigned to a District Judge when the case was filed. The parties have not consented to

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Magistrate Judge jurisdiction and the court now finds that assignment of a District Judge is

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necessary to properly address the case. The Clerk of the Court will be directed to assign a
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District Judge.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s requests for the appointment of counsel (Docs. 29 and 31) are

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2.

Plaintiff’s motion for an extension of time (Doc. 30) is granted:

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3.

Plaintiff shall file a second amended complaint consistent with the court’s

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denied;

prior orders within 30 days of the date of this order;
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Plaintiff’s motion for summary judgment (Doc. 32) is stricken as defective

and premature; and
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The Clerk of the Court is directed to randomly assign a District Judge and

to update the docket to reflect the new case number.

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DATED: August 10, 2018
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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