Calloway v. Kelley et al

Filing 12

ORDER DENYING Plaintiff's 9 Motion to Amend as Unnecessary; ORDER DENYING Plaintiff's 11 Motion to Appoint Counsel, signed by Magistrate Judge Stanley A Boone on 5/23/2013. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMISI JERMAINE CALLOWAY,

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Plaintiff,

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v.
G. KELLEY, et al.,

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Defendants.

Case No. 1:11-cv-01090-SAB (PC)
ORDER DENYING PLAINTIFF’S MOTION TO
AMEND AS UNNECESSARY
ORDER DENYING PLAINTIFF’S MOTION TO
APPOINT COUNSEL
(ECF Nos. 9 & 11.)

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Plaintiff Jamisi Jermaine Calloway (“Plaintiff”), a prisoner proceeding pro se and in forma

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pauperis, filed this civil rights action on July 1, 2011. On May 16, 2013, Plaintiff filed a motion

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seeking leave to amend his complaint and a motion for the appointment of counsel. (ECF Nos. 9

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& 11.)

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1.

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Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party’s

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Motion to Amend Complaint

pleading once as a matter of course at any time before a responsive pleading is served.

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Otherwise, a party may amend only by leave of the court or by written consent of the adverse
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party, and leave shall be freely given when justice so requires. Fed. R. Civ. P. 15(a). Here,

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Plaintiff does not need leave of the Court to file a first amended complaint because no responsive

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pleading have been filed yet.

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2.

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

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Motion for Appointment of Counsel

Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009); Storseth v. Spellman, 654 F.2d 1349, 1353

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(9th 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 at 970 (citation

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

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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.
In the present case, the Court does not find the required exceptional circumstances exist at

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this time. Even if it is assumed that Plaintiff is not well versed in the law and that he has made

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serious allegations which, if proved, would entitle him to relief, his case is not exceptional. The

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Court is faced with similar cases almost daily. Accordingly,

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IT IS HEREBY ORDERED that:
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Plaintiff’s motion to file an amended complaint is hereby DENIED as

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unnecessary; and

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2.

Plaintiff’s motion for the appointment of counsel is hereby DENIED.

IT IS SO ORDERED.

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Dated:

May 23, 2013

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UNITED STATES MAGISTRATE JUDGE

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