(PC) Gonzalez v. James

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 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 14 JOON KEE JAMES, et al. PLAINTIFF’S REQUEST FOR COUNSEL 15 Defendants. (Docs. 22, 23) 16 17 Jaime Cesar Gonzalez seeks to hold the defendants liable for deliberate indifference to his 18 serious medical needs when he was taken to the hospital emergency room, following an 19 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 21 against them pursuant Rule 55(c) of the Federal Rules of Civil Procedure. (Doc. 22.) Plaintiff 22 did not oppose the motion. 23 The magistrate judge found Defendants “did not intentionally fail to file a response to the 24 operative complaint.” (Doc. 23 at 3.) In addition, the magistrate judge indicated Defendants 25 satisfied the requirement to identify a meritorious defendants, because “they submit that they are 26 not government actors under section 1983 and they did not … refuse[] to provide medical 27 treatment to Plaintiff.” (Id. at 3-4.) Finally, the magistrate judge found “nothing in the record to 28 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 2 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 4 that any objections must be filed within 14 days of the date of service. (Id. at 5.) The Court also 5 informed Plaintiff that the “failure to file objections within the specified time may result in the 6 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 8 considers despite its untimely filing. However, Plaintiff does not address the findings of the 9 magistrate judge related to the pending motion. (See Doc. 24 at 1-2.) Rather, Plaintiff 10 summarizes his assertions against the defendants in this case, and indicates he is “at a great 11 disadvantage with [his] lack of knowledge.” (Id. at 1.) Plaintiff asserts that he is “ill prepared” to 12 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 15 are supported by the record and by proper analysis. Further, to the extent Plaintiff seeks 16 appointment of counsel in his objections, the Court denies the motion. Plaintiff does not have a 17 constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 18 (9th Cir. 1997), withdrawn in part on reh'g en banc, 154 F.3d 952 (9th Cir. 1998), and the Court 19 cannot require an attorney to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. 20 U.S. Dist. Ct. for the S. Dist.of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional 21 circumstances the Court may request the voluntary assistance of counsel pursuant to section 22 1915(e)(1). Rand, 113 F.3d at 1525. After reviewing the record, the Court is unable to determine 23 whether Plaintiff is likely to succeed on the merits of his claims. Additionally, Plaintiff appears 24 capable of adequately articulating his claims and arguing legal issues without the assistance of 25 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. 4 5 IT IS SO ORDERED. 6 Dated: _ October 27, 2024 Cerin | Tower TED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28