Scott v. California Health Care Facility
Filing
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ORDER signed by Magistrate Judge Carolyn K. Delaney on 09/04/19 DENYING 22 , 23 request for appointment of counsel and GRANTING 22 , 23 motions for extension of time. The stay imposed in this action remains in place. If plaintiff is not ready to submit an amended complaint by 3/01/20, plaintiff shall file a status report. (Plummer, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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HOWARD SCOTT,
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No. 2:18-cv-0635 TLN CKD P
Plaintiff,
v.
ORDER
CALIFORNIA HEALTH CARE
FACILITY,
Defendant.
Plaintiff is a California prisoner proceeding pro se. On August 29, 2018, this action was
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stayed so that plaintiff could locate certain documents and retain counsel. Plaintiff now asks that
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the court appoint counsel. District courts lack authority to require counsel to represent indigent
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prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989).
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In exceptional circumstances, the court may request an attorney to voluntarily represent such a
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plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991);
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Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether
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“exceptional circumstances” exist, the court must consider plaintiff’s likelihood of success on the
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merits as well as the ability of the plaintiff to articulate his claims pro se in light of the complexity
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of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court
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did not abuse discretion in declining to appoint counsel). The burden of demonstrating
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exceptional circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such
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as lack of legal education and limited law library access, do not establish exceptional
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circumstances that warrant a request for voluntary assistance of counsel.
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Having considered the factors under Palmer, the court finds that plaintiff has failed to
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meet his burden of demonstrating exceptional circumstances warranting the appointment of
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counsel at this time.
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Alternatively, plaintiff asks that the stay imposed in this action remain in place another
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180 days while plaintiff attempts to draft an amended complaint. Good cause appearing, that
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request will be granted.
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Accordingly, IT IS HEREBY ORDERED that:
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1. Plaintiff’s request for the appointment of counsel (ECF No. 22 & 23) is denied.
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2. Plaintiff’s motion for an extension of time (ECF No. 22 & 23) is granted.
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3. The stay imposed in this action remains in place.
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4. If plaintiff is not ready to submit an amended complaint by March 1, 2020, plaintiff
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shall file a status report.
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Dated: September 4, 2019
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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scot0635.31+36
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