Tilei v. McGuinness et al
Filing
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ORDER Denying 27 Motion for Appointment of Counsel and Requiring Plaintiff to File Amended Complaint Within Thirty Days, signed by District Judge Lawrence J. O'Neill on 4/23/13. (Gonzalez, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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PUNAOFO TSUGITO TILEI,
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CASE NO. 1:10-cv00069-LJO SKO PC
Plaintiff,
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL AND
REQUIRING PLAINTIFF TO FILE AMENDED
COMPLAINT WITHIN THIRTY DAYS
v.
W. J. McGUINNESS, et al.,
(Doc. 27)
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Defendants.
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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).
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Pursuant to the appellate decision, which included the direction that the Court consider
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Plaintiff’s motion for the appointment of counsel in light of his medical condition, the Magistrate
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Judge issued an order on March 14, 2013, denying the appointment of counsel and requiring Plaintiff
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to file an amended complaint within thirty days. On April 22, 2013, Plaintiff filed a motion seeking
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a “new determination” regarding the appointment of counsel in light of his current medical
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condition. (Doc. 27.)
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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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In the present case, the Court does not find the required exceptional circumstances. Even if
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it is assumed that Plaintiff is not well versed in the law and that he has made serious allegations
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which, if proved, would entitle him to relief, his case is not exceptional. The Court is faced with
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similar cases almost daily. Further, at this early stage in the proceedings, the Court cannot make a
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determination that Plaintiff is likely to succeed on the merits, and based on a review of the record
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in this case, the Court does not find that Plaintiff cannot adequately articulate his claims. Id. In
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particular, Plaintiff has not yet filed an amended complaint, which precludes a finding that he is
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likely to succeed on the merits, and the record in this action reflects that Plaintiff is capable of doing
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what he has been ordered to do: file an amended complaint. While counsel may perhaps be
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warranted at a later stage in these proceedings, at this stage, exceptional circumstances do not exist.
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As the Court has previously acknowledged in two orders, Plaintiff is suffering from serious
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health issues. However, as the Magistrate Judge stated, Plaintiff is not incarcerated at an institution
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in this jurisdiction and to the extent he might be entitled to prospective relief, that relief may not be
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sought in this action.1 18 U.S.C. § 3626(a)(1)(A); Summers v. Earth Island Institute, 555 U.S. 488,
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493, 129 S.Ct. 1142, 1149 (2009); Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-61, 112 S.Ct.
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Plaintiff’s intense focus on his current conditions of confinement and medical condition coupled with his
silence regarding that fact that this action arises out of past events at California State Prison-Corcoran cause the
Court concern. Plaintiff must understand that he will not be allowed to use this action to challenge his current
conditions of confinement at Salinas Valley State Prison.
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2130 (1992); Alvarez v. Hill, 667 F.3d 1061, 1063-64 (9th Cir. 2012); Mayfield v. United States, 599
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F.3d 964, 969 (9th Cir. 2010), cert. denied, 131 S.Ct. 503 (2010).
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Accordingly, Plaintiff’s motion for the appointment of counsel is HEREBY DENIED and
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Plaintiff has thirty (30) days from the date of service of this order to file an amended complaint in
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compliance with the order filed on March 14, 2013. If Plaintiff fails to do so, this action will be
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dismissed.
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IT IS SO ORDERED.
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Dated:
April 23, 2013
/s/ Lawrence J. O'Neill
B9ed48
UNITED STATES DISTRICT JUDGE
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