1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 RICKY TYRONE FOSTER, Case No. 1:21-cv-1044-NONE-HBK 11 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION

FOR ENLARGEMENT OF TIME, DENYING

12 v. PLAINTIFF’S MOTION TO APPOINT

COUNSEL, AND FINDING MOOT

13 KAWEAK DELTA MEDICAL CENTER, PLAINTIFF’s SECOND MOTION FOR

ET. AL., ENLARGEMENT OF TIME

14 Defendants. ORDER FINDING DEFENDANTS’ 15 SEPTEMBER 15, 2021 CROSS-MOTION

FOR SUMMARY JUDGMENT MOOTED BY

16 THEIR OCTOBER 1, 2021 [AMENDED]

CROSS-MOTION FOR SUMMARY

17 JUDGMENT 18 (Doc. Nos. 12, 27, 28, 32) 19 20 Pending before the Court is Plaintiff’s motion for 60-day enlargement of time to file 21 response to Defendants’ amended1 cross-motion for summary judgment and motion to appoint 22 counsel, both of which Plaintiff filed “ex parte” on October 27 and 28, 2021. (Doc. Nos. 27, 28). 23 Defendants filed an opposition to Plaintiff’s motion for appointment of counsel on November 11, 24 2021. (Doc. No. 31). Plaintiff recently filed a second motion for extension on November 15, 25 2021 seeking a 30-day day extension of time to respond to Defendants’ amended cross-motion for 26

27 1 As discussed infra, because Defendants filed an earlier motion for summary judgment, the Court deems the second-filed motion, albeit not labeled as such, an amended motion for summary judgment and the 28 operative pleading. 1 summary judgment. (Doc. No. 32). For the reasons set forth below, the Court grants Plaintiff’s 2 unopposed motion for a 60-day enlargement of time but denies Plaintiff’s motion to appoint 3 counsel. Because the Court grants Plaintiff’s first filed-motion for extension, the Court deems his 4 second-filed cross-motion for a 30-day enlargement of time moot. 5 Background 6 As background, Plaintiff Ricky Tyrone Foster is a prisoner proceeding pro se in this 7 action under 42 U.S.C. § 1983 initiated in Tulare County Superior Court. (See docket). The 8 state court issued a demurrer on all causes of action, effectively dismissing the case, but the 9 appellate court reversed the trial court’s order. (See Doc. No. 13 a 2). The gravamen of 10 Plaintiff’s action is that defendants acted with deliberate indifference to his serious medical 11 condition, involving broken ribs. On July 2, 2021, Defendants removed this action to federal 12 court. (Doc. No. 1). Soon after removal and prior to the Court issuing a discovery and 13 scheduling order, Plaintiff filed a motion for summary judgment on July 19, 2021. (Doc. No. 5). 14 Defendants filed an opposition and objections to the motion, noting that Plaintiff submitted his 15 own declaration in support of his motion, but no medical records. (Doc. Nos. 10, 11). On 16 September 15, 2021, Defendants Kaweah Delta Medical Center and Defendant Lee filed a joint 17 motion for summary judgment with a supporting memorandum of law. (Doc. Nos. 12, 13). On 18 September 16, 2021, the Court issued a Rand warning to Plaintiff noting Defendants’ September 19 15, 2021 motion for summary judgment failed to include one. (Doc. No. 17). On October 1, 20 2021, Plaintiff filed objections to Defendants’ September 15, 2021 motion, alleging among other 21 things Defendants did not serve him with a copy of the September 15 summary judgment motion. 22 (Doc. No. 18). Thereafter, on October 1, 2021, Defendants then filed their amended cross- 23 motion for summary judgment. (Doc. No. 23). Plaintiff directs both his requests for a 60-day 24 enlargement of time and his 30-day enlargement of time to the Defendants’ October 1, 25 2021amended cross-motion for summary judgment. (Doc. Nos. 27, 32). 26 Plaintiff’s Motions for Enlargement of Time (Doc. Nos. 27, 32) 27 Plaintiff’s motion for an enlargement of time, signed and dated October 13, 2021, seeks a 28 1 sixty-day enlargement of time to oppose Defendants’ October 1 motion for summary judgment.2 2 (Doc. No. 27). Plaintiff explains that he was transferred from CSP-SATF Corcoran to CSP- 3 Corcoran and only recently received his personal and legal property. (Id. at 2). Plaintiff also states 4 he has not been afforded access to the prison law library due to a Covid-19 outbreak at the prison. 5 (Id.). Plaintiff further alleges due to the Covid-19 outbreak he is unable to obtain “legal supplies, 6 copies, and mailing supplies.” (Id. at 3). Plaintiff submits that he is fully vaccinated and requests 7 that the Court issue an order requiring correctional officials permit him access to the law library 8 so that he can prosecute his case, or alternative to transfer him. (Id. at 2-3). 9 Fed. R. Civ. P. 6(b) provides for extending deadlines for good cause shown, if the request 10 to extend time is made before the original time, or its extension expires; or, on a motion made 11 after the time has expired, if the party failed to act because of excusable neglect. Using the date 12 Plaintiff signed the motion, the motion is timely filed. While a summary judgment motion and 13 opposition are based on whether there is a genuine dispute of material fact in the record, 14 understandably the law informing what facts are material would be important for Plaintiff to 15 litigate his case. Defendants were permitted an opportunity to respond to the motion and did not 16 do so. (See docket). Under Local Rule 230(c), no response may be construed as no opposition. 17 The Court thus deems Plaintiff’s motion to extend the time unopposed and further finds good 18 cause to grant an extension. Plaintiff shall deliver his response to Defendants’ October 1, 2021 19 amended motion for summary judgment to prison officials for mailing no later than December 29, 20 2021. Because the Court grants Plaintiff’s first-filed motion for an enlargement of time, the 21 subsequent motion for enlargement of time is deemed moot. 22 Plaintiff’s Motion to Appoint Counsel (Doc. No. 28) 23 Plaintiff also moves for the appointment of counsel. (Doc. No. 28 at 1). Similar to 24 Plaintiff’s allegations in his motion for an enlargement of time, he reiterates that due to the 25 ongoing Covid-19 outbreak, he does not have access to the law library, ability to make copies, 26

27 2 Notably Plaintiff’s motions were docketed October 27 and October 28, 2021 but bear a signature date several weeks earlier on October 13, 2021 and October 17, 2021, respectively. (See Doc. 28 No. 27 at 3; Doc. No. 28 at 3). 1 and mailing supplies. (Id. at 2). Plaintiff states that the Covid-19 outbreak constitutes an 2 “extraordinary circumstances” beyond his control that warrant appointment of counsel. (Id. at 3). 3 The United States Constitution does not require appointment of counsel in civil cases. See 4 Lewis v. Casey, 518 U.S. 343, 354 (1996) (explaining Bounds v. Smith, 430 U.S. at 817, did not 5 create a right to appointment of counsel in civil cases). Under 28 U.S.C. § 1915, this court has 6 discretionary authority to appoint counsel for an indigent to commence, prosecute, or defend a 7 civil action. See 28 U.S.C. § 1915(e)(1) (stating the court has authority to appoint counsel for 8 people unable to afford counsel); see also United States v. McQuade, 519 F.2d 1180 (9th Cir. 9 1978) (addressing relevant standard of review for motions to appoint counsel in civil cases) (other 10 citations omitted). However, motions to appoint counsel in civil cases are granted only in 11 “exceptional circumstances.” Id. at 1181. The court may consider many factors to determine if 12 exceptional circumstances warrant appointment of counsel including, but not limited to, proof of 13 indigence, the likelihood of success on the merits, and the ability of the plaintiff to articulate his 14 or her claims pro se in light of the complexity of the legal issues involved. Id.; see also Rand v. 15 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds on reh’g en 16 banc, 154 F.2d 952 (9th Cir. 1998). 17 Plaintiff has not met his “burden of demonstrating exceptional circumstances” at this 18 time. Jones v. Chen, 2014 WL 12684497, at *1 (E.D. Cal. Jan. 14, 2014). Plaintiff has capably 19 filed motions and he prevailed on appeal at the state court level. Circumstances caused by the 20 Covid-19 pandemic do not establish exceptional circumstances. Rodriquez v. United States, Case 21 No. 1:19-cv-00001-DAD-SAB(PC), 2021 WL 1172777 *1 (E.D. Cal. March 29, 2021)(citing 22 Pitts v. Washington, Case No. 18-cv-526-RSP-MLP, 2020 WL 2850564 *1 (W.D. Wash. June 23 2020)(denying motion for appointment of counsel because, “[a]lthough Plaintiff contends he is 24 unable to access the law library because of social distancing, this bare assertion does not justify 25 appointment of counsel at this time, nor does the Covid-19 pandemic.”)); Faultry v. Saechao, 26 Case No. 2:18-cv-1850-KJM AC (PC), 2020 WL 2561596 (E.D. Cal. May 20, 2020)(noting the 27 impact of the Covid-19 health crisis on prison operations are common to all prisoners). Should 28 this case progress and Plaintiff’s circumstances change so that he is able to demonstrate 1 | exceptional circumstances, he may renew his motion for appointment at counsel at that time. 2 | Accordingly, Plaintiff's motion is denied, without prejudice. 3 Defendants’ Multiple Motions for Summary Judgment (Doc. Nos. 12, 23) 4 As noted above, multiple motions for summary judgment remain pending on the docket. 5 || Defendants have what appear to be, absent the Rand notice, two substantially similar motions for 6 | summary judgment pending. (Doc. Nos. 12, 23). A cursory review of the Defendants’ motions 7 | does not reveal substantial differences between these motions, filed approximately a month apart. 8 | The amended motion for summary judgment was filed later in time and the Court, deeming that 9 | operative pleading, granted Plaintiff an extension of time to respond to that amended motion. 10 | Thus, the Court deems the motion for summary judgment filed September 15, 2021 mooted by 11 | the amended cross-motion for summary judgment. 12 Accordingly, it is ORDERED: 13 1. Plaintiff's motion for an enlargement of time (Doc. No. 27) is granted to the extent 14 | Plaintiff shall provide his response to Defendants’ amended motion for summary judgment (Doc. 15 || No. 23) to prison officials for mailing no later than December 29, 2021. Plaintiff may want to 16 || attach a copy of this Order to his request to facilitate access to the law library to demonstrate he is 17 | under a court-imposed deadline. 18 2. Plaintiffs second motion for an enlargement of time (Doc. No. 32) is deemed moot. 19 3. Plaintiff's motion for appointment of counsel (Doc. No. 28) is denied without 20 | prejudice. 21 4. Defendants’ cross-motion for summary judgment filed September 12, 2021 (Doc. No. 22 | 12) is deemed mooted by their October 1, 2021 amended cross-motion for summary judgment 23 | (Doc. No. 23). 24 Dated: _ November 29, 2021 law ZA. foareh Back 5 HELENA M. BARCH-KUCHTA

UNITED STATES MAGISTRATE JUDGE

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