Bowler #234066 v. Ryan et al

Filing 16

ORDER - Plaintiff's motion for appointment of counsel is denied. (Doc. 15 .) Plaintiff's motion for an extension of time is granted to the extent set forth below. (Doc. 14 .) Plaintiff is granted an additional 30 days from the filing date of this Order in which to file a second amended complaint in compliance with the August 12, 2013 Order, doc. 13 . If Plaintiff fails to file an amended complaint within the extension granted herein, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action with prejudice that states that the dismissal may count as a "strike" under 28 U.S.C. § 1915(g). Signed by Senior Judge Robert C Broomfield on 9/19/13. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Joshua Erik Bowler,
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Plaintiff,
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vs.
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Charles L. Ryan, et al.,
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Defendants.
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No. CV 13-0046-PHX-RCB (JFM)
ORDER

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Plaintiff Joshua Erik Bowler, who is confined in the Arizona State Prison Complex-

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Eyman, Browning Unit, in Florence, Arizona, filed a pro se civil rights Complaint pursuant

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to 42 U.S.C. § 1983, which the Court dismissed for failure to state a claim with leave to

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amend. (Doc. 6.) Plaintiff filed a First Amended Complaint. (Doc. 11.) On August 12,

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2013, the Court dismissed the First Amended Complaint for failure to state a claim with leave

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to amend within 30 days. (Doc. 13.) On September 12, 2013, Plaintiff filed a motion for

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extension of time to file a second amended complaint and a motion for appointment of

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counsel. (Doc. 14, 15.) The Court will deny the motion for appointment of counsel, but will

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grant Plaintiff an extension of time as set forth herein.

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not understand how to amend to correct the deficiencies in his prior complaints. There is no

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constitutional right to the appointment of counsel in a civil case. See Ivey v. Bd of Regents

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of the Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982). In proceedings in forma pauperis,

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the court may request an attorney to represent any person unable to afford one. 28 U.S.C.

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JDDL-K

Plaintiff seeks the appointment of counsel because he is indigent and because he does

§ 1915(e)(1). Appointment of counsel under 28 U.S.C. § 1915(e)(1) is required only when

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“exceptional circumstances” are present. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.

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1991). A determination with respect to exceptional circumstances requires an evaluation of

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the likelihood of success on the merits as well as the ability of Plaintiff to articulate his

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claims pro se in light of the complexity of the legal issue involved. Id. “Neither of these

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factors is dispositive and both must be viewed together before reaching a decision.” Id.

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(quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).

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Having considered both elements, Plaintiff has not shown that exceptional

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circumstances are present that would require the appointment of counsel in this case. In its

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prior Orders, the Court has described the standard to state the type of claims alleged by

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Plaintiff.1 Plaintiff should review those Orders and allege any facts that, if proven, may

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entitle him to relief.

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Plaintiff also seeks an extension of time to file a second amended complaint. Plaintiff

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states that he lacked access to his property while a protective custody review was being

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conducted. The Court will grant Plaintiff an additional 30 days in which to file a second

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amended complaint.

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Warnings

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A.

Release

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Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release.

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Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay

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the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result

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JDDL-K

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Specifically, Plaintiff alleged a claim for threat to safety. To state a claim under
§ 1983 for failure to protect or threats to safety, an inmate must allege facts to support that
he was incarcerated under conditions posing a substantial risk of harm and that prison
officials were “deliberately indifferent” to those risks. Farmer v. Brennan, 511 U.S. 825,
832-33 (1994). To adequately allege deliberate indifference, he must allege facts to support
that a defendant knew of, but disregarded, an excessive risk to his safety. Id. at 837. That
is, “the official must both [have been] aware of facts from which the inference could be
drawn that a substantial risk of serious harm exist[ed], and he must also [have] draw[n] the
inference.” Id. Thus, Plaintiff must allege facts to support when and how any particular
defendant knew of a substantial risk of harm to Plaintiff and that the defendant disregarded
or failed to take steps to protect Plaintiff.
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in dismissal of this action.

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B.

Address Changes

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Plaintiff must file and serve a notice of a change of address in accordance with Rule

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83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other

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relief with a notice of change of address. Failure to comply may result in dismissal of this

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action.

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C.

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Plaintiff must submit an additional copy of every filing for use by the Court. See

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LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice

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Copies

to Plaintiff.

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D.

Possible “Strike”

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Because the Complaint and First Amended Complaint were dismissed for failure to

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state a claim, if Plaintiff fails to file a second amended complaint correcting the deficiencies

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identified in the Court’s August 12, 2013 Order, the dismissal may count as a “strike” under

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the “3-strikes” provision of 28 U.S.C. § 1915(g). Under the 3-strikes provision, a prisoner

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may not bring a civil action or appeal a civil judgment in forma pauperis under 28 U.S.C.

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§ 1915 “if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in

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any facility, brought an action or appeal in a court of the United States that was dismissed

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on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may

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be granted, unless the prisoner is under imminent danger of serious physical injury.” 28

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U.S.C. § 1915(g).

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E.

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If Plaintiff fails to timely comply with every provision of this Order, including these

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warnings, and the August 12, 2013 Order, the Court may dismiss this action without further

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notice. See Ferdik, 963 F.2d at 1260-61 (a district court may dismiss an action for failure to

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comply with any order of the Court).

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IT IS ORDERED:

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JDDL-K

(1)

Possible Dismissal

Plaintiff’s motion for appointment of counsel is denied. (Doc. 15.)
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(2)

Plaintiff’s motion for an extension of time is granted to the extent set forth

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below. (Doc. 14.)

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(3)

Plaintiff is granted an additional 30 days from the filing date of this Order in

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which to file a second amended complaint in compliance with the August 12, 2013 Order,

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doc. 13.

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(4)

If Plaintiff fails to file an amended complaint within the extension granted

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herein, the Clerk of Court must, without further notice, enter a judgment of dismissal of this

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action with prejudice that states that the dismissal may count as a “strike” under 28 U.S.C.

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§ 1915(g).

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DATED this 19th day of September, 2013.

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JDDL-K

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