(PC) Ramos v. Mayfield

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA LEOBARDO ERIC RAMOS, Case No. 1:21-cv-01036-NONE-EPG (PC) Plaintiff, ORDER DENYING PLAINTIFF’S MOTION 11 FOR APPOINTMENT OF COUNSEL, v. WITHOUT PREJUDICE MAYFIELD, et al., ORDER DIRECTING CLERK TO SEND 13 PLAINTIFF A COPY OF HIS FIRST AMENDED COMPLAINT (ECF NO. 10) Defendants. (ECF No. 15)

17 Leobardo Ramos (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983.

19 On November 29, 2021, Plaintiff filed a motion for appointment of counsel. (ECF No. 15).1 Plaintiff asks for appointment of counsel because he has a mental disorder and deals with twelve active diagnoses; because he has a current TABE score of 5.0; because this case has complex cross-examination and frustrating discovery; because this case is meritorious; because Plaintiff attached a letter to his motion. In the letter, Plaintiff states that custody threw away his legal work. Plaintiff asks for a copy of his First Amended Complaint, which he intends to use to file a Second Amended Complaint.

25 The Court will grant Plaintiff’s request for a copy of his First Amended Complaint. However, the Court notes that Plaintiff was not given leave to file a Second Amended Complaint and that his deadline to object to the findings and recommendations on his First Amended Complaint passed over a month ago. If Plaintiff wants to file a Second Amended Complaint, he must file a motion for leave to amend along with a copy of his proposed Second Amended Complaint. In the motion, Plaintiff should explain the changes he is attempting to make to his First Amended Complaint.

1 | custody staff is refusing access to the prison law library for Plaintiff to research his excessive | force claims; and because custody staff stole his Prison Lawyers Handbook.

3 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. | Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952 | (9th Cir. 1998), and the Court cannot require an attorney to represent Plaintiff pursuant to 28 | U.S.C. § 1915(e)(1).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 US. 296, 298 (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.

9 Without a reasonable method of securing and compensating counsel, the Court will seek 10 volunteer counsel only in the most serious and exceptional cases. In determining whether 11 “exceptional circumstances exist, a 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. (citation and internal quotation marks omitted).

14 The Court will not order appointment of counsel at this time. The Court has reviewed the || record in this case, and at this time the Court is unable to make a determination that Plaintiff is | likely to succeed on the merits of his claim. Moreover, while there may be some issues, it | appears that Plaintiff can adequately articulate his claim.

18 Plaintiff is advised that he is not precluded from renewing his motion for appointment of | counsel at a later stage of the proceedings.

20 For the foregoing reasons, IT IS ORDERED that: 71 1. Plaintiff's motion for appointment of counsel is DENIED without prejudice; and 22 2. The Clerk of Court is directed to send Plaintiff a copy of his First Amended 23 Complaint (ECF No. 10).

35 IT IS SO ORDERED.

26 | Dated: _ November 30, 2021 [sf Sy □ 7 UNITED STATES MAGISTRATE JUDGE