(PC) Williams v. California Department of Corrections

6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA

9 SYLESTER WILLIAMS, 1:19-cv-00250-LJO-GSA-PC 10 Plaintiff, ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL 11 vs. (ECF No. 41.)

12 CALIFORNIA DEPARTMENT OF ORDER GRANTING MOTION FOR CORRECTIONS, et al., EXTENSION OF TIME TO FILE 13 FOURTH AMENDED COMPLAINT Defendants.

14 THIRTY-DAY DEADLINE I. BACKGROUND 17 Sylester Williams (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on January 3, 2019, at the United States District Court for the Northern District of California. (ECF No. 1.) On February 21, 2019, the case was transferred to this court.

21 (ECF No. 12.)

22 On March 22, 2019, Plaintiff filed the First Amended Complaint as a matter of course.

23 (ECF No. 23.) On June 28, 2019, Plaintiff lodged a proposed Second Amended Complaint, and on July 26, 2019, Plaintiff lodged a proposed Third Amended Complaint. (ECF Nos. 32, 36.)

25 On December 19, 2019, the court screened the First Amended Complaint and dismissed it for failure to state a claim, with leave to amend. (ECF No. 40.) Plaintiff’s lodged complaints were stricken from the record. (Id.) Plaintiff was granted thirty days in which to file a Fourth Amended Complaint. (Id.) 1 On December 19, 2019, Plaintiff filed a motion to appoint counsel. (ECF No. 41.) On January 2, 2020, Plaintiff filed a motion for extension of time to file the Fourth Amended Complaint. (ECF No. 42.) Plaintiff’s motions are now before the court.

4 II. MOTION FOR APPOINTMENT OF COUNSEL 5 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain exceptional circumstances the court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.

11 Without a reasonable method of securing and compensating counsel, the court will seek volunteer counsel only in the most serious and exceptional cases. In determining whether “exceptional circumstances exist, the district court must evaluate both the likelihood of success of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted).

16 In the present case, the court does not find the required exceptional circumstances. At this early stage in the proceedings, the court cannot make a determination that Plaintiff is likely to succeed on the merits. Plaintiff’s First Amended Complaint was dismissed on December 19, 2019, with leave to amend. To date, Plaintiff has not filed an amended complaint. Thus, there is no complaint on record in this case for which the Court has found cognizable claims. It is too early for service of process, and no other parties have yet appeared. Plaintiff’s due process claim is not complex. Moreover, after a review of the record in this case, the Court finds that Plaintiff can adequately articulate his claims and respond to the Court’s orders. Thus, the court shall deny the motion for appointment of counsel. Plaintiff is advised that he is not precluded from renewing the motion for appointment of counsel at a later stage of the proceedings.

26 III. MOTION FOR EXTENSION OF TIME 27 Plaintiff seeks an extension of time to file the Fourth Amended Complaint. The Court finds good cause to grant Plaintiff an extension of time. Plaintiff shall be granted thirty days from the date of service of this order in which to file the Fourth Amended Complaint, pursuant to the Court’s screening order issued on December 19, 2019.

3 IV. CONCLUSION 4 Based on the foregoing, IT IS HEREBY ORDERED that: 5 1. Plaintiff’s motion for appointment of counsel, filed on December 19, 2019, is 6 DENIED, without prejudice; 7 2. Plaintiff’s motion for extension of time to file the Fourth Amended Complaint, 8 filed on January 2, 2020, is GRANTED; and 9 3. Plaintiff is granted thirty days from the date of service of this order in which to 10 file the Fourth Amended Complaint, pursuant to the Court’s screening order 11 issued on December 19, 2019.

IT IS SO ORDERED.

14 Dated: January 16, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE