(PC) Gonzalez v. James

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA JAIME CESAR GONZALEZ, Case No. 1:23-cv-01505 JLT SAB (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, GRANTING 13 v. DEFENDANTS’ MOTION TO SET ASIDE ENTRY OF DEFAULT, AND DENYING JOON KEE JAMES, et al. PLAINTIFF’S REQUEST FOR COUNSEL 15 Defendants. (Docs. 22, 23) 17 Jaime Cesar Gonzalez seeks to hold the defendants liable for deliberate indifference to his serious medical needs when he was taken to the hospital emergency room, following an altercation with correctional officers at California City Correctional Facility. (Doc. 9.)

20 Defendants Gerald Edwards and Sabrina M. Kurczeski move to set aside the default entered against them pursuant Rule 55(c) of the Federal Rules of Civil Procedure. (Doc. 22.) Plaintiff did not oppose the motion.

23 The magistrate judge found Defendants “did not intentionally fail to file a response to the operative complaint.” (Doc. 23 at 3.) In addition, the magistrate judge indicated Defendants satisfied the requirement to identify a meritorious defendants, because “they submit that they are not government actors under section 1983 and they did not … refuse[] to provide medical treatment to Plaintiff.” (Id. at 3-4.) Finally, the magistrate judge found “nothing in the record to indicate that the Plaintiff would be prejudiced if the entry of default was set aside.” (Id. at 4.)

1 Thus, the magistrate judge found Defendants showed “all of the relevant factors weigh in favor of setting aside default,” and recommended the motion be granted. (Id. at 5.)

3 The Court served the Findings and Recommendations upon the parties and notified them that any objections must be filed within 14 days of the date of service. (Id. at 5.) The Court also informed Plaintiff that the “failure to file objections within the specified time may result in the waiver of rights on appeal.” (Id., citing Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014).)

7 Plaintiff filed objections to the Findings and Recommendations, which the Court considers despite its untimely filing. However, Plaintiff does not address the findings of the magistrate judge related to the pending motion. (See Doc. 24 at 1-2.) Rather, Plaintiff summarizes his assertions against the defendants in this case, and indicates he is “at a great disadvantage with [his] lack of knowledge.” (Id. at 1.) Plaintiff asserts that he is “ill prepared” to prosecute his claims and requests the Court appoint counsel. (Id. at 2.)

13 According to 28 U.S.C. § 636(b)(1), the Court performed a de novo review of this case.

14 Having carefully reviewed the matter, the Court concludes the Findings and Recommendations are supported by the record and by proper analysis. Further, to the extent Plaintiff seeks appointment of counsel in his objections, the Court denies the motion. 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 reh'g en banc, 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. U.S. Dist. Ct. for the S. Dist.of Iowa, 490 U.S. 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. After reviewing the record, the Court is unable to determine whether Plaintiff is likely to succeed on the merits of his claims. Additionally, Plaintiff appears capable of adequately articulating his claims and arguing legal issues without the assistance of counsel. Exceptional circumstances do not exist at this time to warrant appointment of counsel.

26 Thus, the Court ORDERS: 27 1. The Findings and Recommendations filed on September 27, 2024 (Doc. 23) are 28 ADOPTED in full.

1 2. Defendants’ motion to set aside the entry of default (Doc. 22) is GRANTED.

2 3. Plaintiffs request for appointment of counsel is DENIED without prejudice.

3 4. The matter is referred to the magistrate judge for further proceedings.

5 IT IS SO ORDERED.

6 Dated: _ October 27, 2024 Cerin | Tower TED STATES DISTRICT JUDGE