Tilei v. McGuinness et al

Filing 26

ORDER Denying Plaintiff's Motion for Appointment of Counsel and Requiring Plaintiff to File Amended Complaint within Thirty Days; ORDER Directing Clerk's Office to Provide Complaint Form and Courtesy Copy of Screening Order signed by Magistrate Judge Sheila K. Oberto on 05/13/2013. Amended Complaint due by 4/16/2013. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PUNAOFO TSUGITO TILEI,

CASE NO. 1:10-cv00069-LJO SKO PC

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Plaintiff,

ORDER DENYING PLAINTIFF’S MOTION
FOR APPOINTMENT OF COUNSEL AND
REQUIRING PLAINTIFF TO FILE AMENDED
COMPLAINT WITHIN THIRTY DAYS

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v.
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W. J. McGUINNESS, et al.,
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(Docs. 10, 15, and 23)
Defendants.

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ORDER DIRECTING CLERK’S OFFICE TO
PROVIDE COMPLAINT FORM AND
COURTESY COPY OF SCREENING ORDER

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(Doc. 10)
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Plaintiff Punaofo Tsugito Tilei, a state prisoner proceeding pro se and in forma pauperis, filed

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this civil rights action pursuant to 42 U.S.C. § 1983 on January 13, 2010. This action was dismissed

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on March 7, 2011, for failure to state any claims following Plaintiff’s failure to file an amended

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complaint. 28 U.S.C. § 1915A. On February 10, 2012, pursuant to Federal Rule of Civil Procedure

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60(b)(6), the Court denied Plaintiff’s motion for relief from the dismissal. On February 14, 2013,

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the United States Court of Appeals for the Ninth Circuit reversed and remanded the action on the

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ground that Plaintiff was entitled to relief from judgment based on excusable neglect. Fed. R. Civ.

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P. 60(b)(1). Accordingly, pursuant to the appellate decision, which included the direction that the

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Court consider Plaintiff’s motion for the appointment of counsel in light of his medical condition,

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the Court orders as follows.

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Plaintiff does not have a constitutional right to the appointment of counsel in this action.

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Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009); Storseth v. Spellman, 654 F.2d 1349, 1353 (9th
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Cir. 1981). The Court may request the voluntary assistance of counsel pursuant to 28 U.S.C. §

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1915(e)(1), but it will do so only if exceptional circumstances exist. Palmer, 560 F.3d at 970;

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Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). In making this determination, the

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Court must evaluate the likelihood of success on the merits and the ability of Plaintiff to articulate

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his claims pro se in light of the complexity of the legal issues involved. Palmer, 560 F.3d at 970

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(citation and quotation marks omitted); Wilborn, 789 F.2d at 1331. Neither consideration is

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dispositive and they must be viewed together. Palmer, 560 F.3d at 970 (citation and quotation marks

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omitted); Wilborn 789 F.2d at 1331.

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Here, the Court does not find the required exceptional circumstances. Even assuming

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Plaintiff is not well versed in the law and that he has made serious allegations which, if proved,

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would entitle him to relief, his case is not exceptional. The Court is faced with similar cases almost

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daily. Further, at this early stage in the proceedings, the Court cannot make a determination that

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Plaintiff is likely to succeed on the merits, and based on a review of the record in this case, the Court

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does not find that Plaintiff cannot adequately articulate his claims. Id. While counsel may perhaps

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be warranted at a later stage in these proceedings, at this stage, exceptional circumstances do not

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exist.

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The Court acknowledges, as it did in its order of February 10, 2012, that Plaintiff is suffering

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from serious health issues. However, Plaintiff is not incarcerated at an institution in this jurisdiction

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and to the extent that Plaintiff might be entitled to prospective relief, that relief may not be sought

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in this action. 18 U.S.C. § 3626(a)(1)(A); Summers v. Earth Island Institute, 555 U.S. 488, 493, 129

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S.Ct. 1142, 1149 (2009); Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-61, 112 S.Ct. 2130

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(1992); Alvarez v. Hill, 667 F.3d 1061, 1063-64 (9th Cir. 2012); Mayfield v. United States, 599 F.3d

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964, 969 (9th Cir. 2010), cert. denied, 131 S.Ct. 503 (2010).

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In accordance with the appellate court’s decision, within thirty days from the date of service

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of this order, Plaintiff shall file an amended complaint in compliance with the Court’s screening

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order of October 13, 2010. Plaintiff is limited to amending his claims against prison officials at

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California State Prison-Corcoran and he may not attempt to litigate his current conditions of

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confinement at Salinas Valley State Prison (SVSP) in this action. Venue for claims against arising
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from events at SVSP is proper in the Northern District of California. See Costlow v. Weeks, 790

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F.2d 1486, 1488 (9th Cir. 1986) (court may raise defective venue sua sponte); see also Davis v.

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Mason County, 927 F.2d 1473, 1479 (9th Cir. 1991) (courts have broad discretion regarding

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severance).

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Based on the foregoing, it is HEREBY ORDERED that:

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Plaintiff’s motion for the appointment of counsel is denied, without prejudice;

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2.

Within thirty (30) days from the date of service of this order, Plaintiff shall file an

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amended complaint in compliance with the screening order filed on October 13,

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2010;

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3.

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The Clerk’s Office shall send Plaintiff a civil rights complaint form and a courtesy
copy of the screening order filed on October 13, 2010; and

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4.

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Plaintiff is warned that the failure to comply with this order will result in dismissal
of this action.

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IT IS SO ORDERED.

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Dated:
ie14hj

March 13, 2013

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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