Martinez v. Lizarraga et al

Filing 32

ORDER signed by Magistrate Judge Dennis M. Cota on 1/9/2019 DENYING 27 and 31 Motions to Appoint Counsel and GRANTING 28 and 31 Motions for Extension of Time. Plaintiff shall file a first amended complaint within 30 days of the date of this order.(Huang, H)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOAQUIN MARTINEZ,

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No. 2:16-CV-0831-JAM-DMC-P

Plaintiff,
v.

ORDER

J. LIZARRAGA, et al.,
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 plaintiff’s motion for the appointment of counsel

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(Docs. 27 and 31). Also before the court are plaintiff’s motions for an extension of time to file a

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first amended complaint (Docs. 28 and 31). Plaintiff’s motions for injunctive relief (Docs. 29 and

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30) are addressed by separate findings and recommendations issued herewith.

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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 Dist.

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

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voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935

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F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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A finding of “exceptional circumstances” requires an evaluation of both the likelihood of success

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on the merits and the ability of the plaintiff to articulate his claims on his own in light of the
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complexity of the legal issues involved. See Terrell, 935 F.2d at 1017. Neither factor is

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dispositive and both must be viewed together before reaching a decision. See id. In Terrell, the

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Ninth Circuit concluded the district court did not abuse its discretion with respect to appointment

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of counsel because:

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. . . Terrell demonstrated sufficient writing ability and legal knowledge to
articulate his claim. The facts he alleged and the issues he raised were not
of substantial complexity. The compelling evidence against Terrell made it
extremely unlikely that he would succeed on the merits.

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Id. at 1017.

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

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circumstances. As explained in the November 2, 2018, order, the court finds plaintiff’s complaint

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currently does not state any claim upon which relief can be granted. Therefore, the court cannot

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conclude plaintiff is likely to succeed on the merits of his claims. Nor can the court make any

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assessment of the legal or factual complexity involved in this case absent an operable pleading

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sufficient for service on defendants. Finally, while plaintiff alleges he suffers a mental illness

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making it difficult for him to litigation this action, plaintiff also states he is being treated for his

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mental illness by prison officials. To the extent plaintiff’s mental illness necessitates additional

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time to comply with court deadlines, the court will accommodate reasonable requests for

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extensions of time.

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In that regard, plaintiff seeks additional time to file a first amended complaint

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pursuant to the court’s November 2, 2018, order. Good cause appearing therefore, plaintiff’s

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requests will be granted.

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s requests for the appointment of counsel (Docs. 27 and 31) are

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Plaintiff’s requests for an extension of time (Docs. 28 and 31) are granted;

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Plaintiff shall file a first amended complaint within 30 days of the date of

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denied;

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and

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this order.

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Dated: January 9, 2019
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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