LARRY SMITH v. FRED SEDIGHI, et al

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LARRY SMITH, Case No.: 3:25-cv-1100-RBM-DEB 12 Plaintiff, ORDER: 13 vs. (1) GRANTING EXTENSION OF 14 TIME TO FILE AMENDED 15 FRED SEDIGHI, et al, COMPLAINT AND 16 Defendants. (2) DENYING REQUEST FOR 17 APPOINTMENT OF COUNSEL 18 [Doc. 11] 19 20 21 Plaintiff Larry Smith is proceeding pro se with a civil action pursuant to 42 U.S.C. 22 § 1983. On January 28, 2026, the Court dismissed Smith’s Complaint without prejudice 23 and with leave to file a first amended complaint by March 30, 2026. (See Doc. 10.) On 24 March 18, 2026,1 Plaintiff filed a Motion for an Extension of Time and for Appointment 25 26 27 1 Notations on the envelope in which the document was mailed indicate Smith turned the document over to prison staff for mailing on March 18, 2026. (See Doc. 11 at 15.) 28 Although the motion was not docketed until April 20, 2026, under the “mailbox rule,” a 1 of Counsel. (Doc. 11.) For the reasons discussed below, the Court DENIES the Motion 2 for Appointment of Counsel and GRANTS the Motion for Extension of Time. 3 I. MOTION FOR APPOINTMENT OF COUNSEL 4 The Court has previously denied two requests from Plaintiff for appointment of 5 counsel. (Docs. 6, 10.) As discussed in those orders, “[t]here is no constitutional right to 6 appointed counsel in a § 1983 action.” Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 7 1997) (citing Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981)). Federal courts 8 do not have the authority “to make coercive appointments of counsel.” Mallard v. United 9 States District Court, 490 U.S. 296, 310 (1989). However, district courts do have 10 discretion pursuant to 28 U.S.C. § 1915(e)(1) to “request” that an attorney represent 11 indigent civil litigants upon a showing of “exceptional circumstances.” See Agyeman v. 12 Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). A finding of exceptional 13 circumstances requires “an evaluation of the likelihood of the plaintiff’s success on the 14 merits and an evaluation of the plaintiff’s ability to articulate his claims ‘in light of the 15 complexity of the legal issues involved.’” Id. (quoting Wilborn v. Escalderon, 789 F.2d 16 1328, 1331 (9th Cir. 1986)); see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 17 1991). 18 In his Motion, Plaintiff raises the same reasons for seeking appointment of counsel 19 as in prior motions. (See Doc. 11.) But, as previously discussed, limited access to the 20 prison law library and unfamiliarity with the law are common circumstances faced by most 21 pro se prisoners and do not by themselves constitute “exceptional circumstances.” See e.g., 22 Wood, 900 F.2d at 1335‒36 (denying appointment of counsel where plaintiff complained 23 of limited access to prison law library and lacked a legal education). Thus, because it 24 25 document is deemed to be “filed” when a prisoner delivers it to prison authorities for 26 forwarding to the district court. See Houston v. Lack, 487 U.S. 266, 270–72 (1988); see 27 also Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009) (“Houston mailbox rule applies to § 1983 suits filed by pro se prisoners.”). 28 1 ||appears Plaintiff is capable of articulating the facts and circumstances relevant to his 2 claims, which are not exceptionally legally complex, and because Plaintiff has yet to show 3 is likely to succeed on the merits of the claims, the Court DENIES Plaintiff's motion 4 || for appointment of counsel without prejudice. 5 HI. MOTION FOR EXTENSION OF TIME 6 Smith also seeks an extension of time to file his amended pleading. (Doc. 11.) He 7 || states he has been dealing with both physical and mental health problems and, in addition, 8 much of his legal work was somehow lost. Ud. at 2,3.) Good cause appearing, the Court 9 || GRANTS Plaintiff's motion for an extension of time. (/d.) Plaintiff's amended complaint 10 ||is now due no later than June 15, 2026.” 11 Ht. CONCLUSION 12 For the reasons discussed above, the Court DENIES Plaintiff's Motion for 13 || Appointment of Counsel without prejudice and GRANTS his Motion for an Extension of 14 Time. Plaintiff must file his amended complaint by June 15, 2026. 15 IT IS SO ORDERED. 16 Dated: May 4, 2026 RR Bo Gs ? L fs > i HON. RUTH BERMUDEZ MONTENEGRO 18 UNITED STATES DISTRICT JUDGE 19 20 21 22 23 |p 24 ||? If Plaintiff fails to timely file an amended complaint, the Court will enter a final Order 75 dismissing this civil action based both on failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(i1) and § 1915A(b)(1), and failure to 26 || prosecute in compliance with a court order requiring amendment. See Lira v. Herrera, 427 97 || F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity to fix his complaint, a district court may convert the dismissal of the complaint into 28 || dismissal of the entire action.”). 3 QA.9NLf axcr TINK DDOAA rACYD