Garcia v. Juarez

Filing 39

ORDER Denying 36 Motion to Amend and 38 Motion for Appointment of Counsel, signed by Magistrate Judge Gary S. Austin on 02/13/15. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERTO M. GARCIA, JR.,

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Plaintiff,

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vs.

1:12-cv-00750-AWI-GSA (PC)
ORDER DENYING MOTION TO
AMEND AND MOTION FOR
APPOINTMENT OF COUNSEL
(Docs 36, 38.)

MATTHEW M. JUAREZ, JR.,

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Defendant.

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I.

BACKGROUND

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Roberto M. Garcia, Jr. (“Plaintiff”) is a state prisoner proceeding pro se with this civil

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rights action pursuant to 42 U.S.C. § 1983. On May 8, 2012, Plaintiff filed the Complaint

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commencing this action. (Doc. 1.) This case now proceeds on Plaintiff’s First Amended

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Complaint, filed on June 14, 2013, against defendant Sergeant Matthew M. Juarez, Jr.

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(“Defendant”) for use of excessive force in violation of the Eighth Amendment.1 (Doc. 11.)

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On January 20, 2015, Plaintiff filed a motion to amend the complaint. (Doc. 36.) On
February 9, 2015, Plaintiff filed a motion for appointment of counsel. (Doc. 38.)

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On May 9, 2014, the court issued an order dismissing all other claims from this action, based
on Plaintiff’s failure to state a claim. (Doc. 19.)
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Plaintiff’s motion to amend and motion for appointment of counsel are now before the

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court.

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II.

LEAVE TO AMEND – RULE 15(a)

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

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

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Fed. R. Civ. P. 15(a). Otherwise, a party may amend only by leave of the court or by written

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consent of the adverse party, and leave shall be freely given when justice so requires. Id.

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ARule 15(a) is very liberal and leave to amend >shall be freely given when justice so

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requires.=@ AmerisourceBergen Corp. v. Dialysis West, Inc., 445 F.3d 1132, 1136 (9th Cir.

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2006) (quoting Fed. R. Civ. P. 15(a)). However, courts Aneed not grant leave to amend where

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the amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an

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undue delay in the litigation; or (4) is futile.@ Id. The factor of A>[u]ndue delay by itself . . . is

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insufficient to justify denying a motion to amend.=@ Owens v. Kaiser Foundation Health Plan,

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Inc., 244 F.3d 708, 712,13 (9th Cir. 2001) (quoting Bowles v. Reade, 198 F.3d 752, 757-58

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(9th Cir. 1999)). Because Plaintiff has already amended the complaint once, and he does not

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have Defendant’s consent to amend, Plaintiff requires leave of court to file a Second Amended

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Complaint.

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Discussion

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Plaintiff seeks to amend the complaint to add evidence of exhaustion of remedies and to

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remove his Fourteenth Amendment claim.

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Plaintiff is not required, at this stage of the proceedings, to provide evidence that he

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exhausted his administrative remedies. While Plaintiff is required to exhaust his available

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administrative remedies before filing suit, McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir.

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2002), the provision of the Prison Litigation Reform Act requiring exhaustion does not impose

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a pleading requirement, but rather creates a defense, and Defendant has the burden of raising

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and proving the absence of exhaustion. 42 U.S.C. § 1997(e(a); Jones v. Bock, 549 U.S. 199,

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211, 127 S.Ct. 910, 918-19 (2007). In the First Amended Complaint, Plaintiff asserts that he

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“has exhausted all mandatory available administrative remedies on the claims raised herein.”
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(Doc. 11 at 4 ¶II.6.) This statement is sufficient at this stage of the proceedings, and allowing

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Plaintiff to amend the complaint to add additional information showing exhaustion of remedies

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would cause undue delay in the litigation, prejudicing Defendant. If Plaintiff files a Second

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Amended Complaint, Defendant will be required to prepare and file another Answer.2

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Removing the Fourteenth Amendment claim from the complaint is also unnecessary

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and would cause undue delay in the litigation, prejudicing Defendant. Plaintiff’s Fourteenth

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Amendment claim was dismissed from this action pursuant to the court’s order issued on May

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9, 2014. (Doc. 19.) The court’s order advised the parties that “[t]his action now proceeds on

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Plaintiff’s First Amended Complaint, filed on June 14, 2013, against defendant Matthew M.

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Juarez, Jr., for use of excessive force in violation of the Eighth Amendment [and a]ll remaining

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claims are DISMISSED from this action.” (Id. at 2 ¶¶2, 3.) Allowing Plaintiff to remove the

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dismissed claim from the complaint by amendment would serve no useful purpose.

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Based on the foregoing, the court finds that granting leave for Plaintiff to amend the

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complaint at this juncture would only cause undue delay in the litigation and prejudice

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Defendant. Therefore, Plaintiff’s motion for leave to amend shall be denied.

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III.

APPOINTMENT OF COUNSEL

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Plaintiff requests court-appointed counsel. Plaintiff does not have a constitutional right

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to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and

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the court cannot require an attorney to represent plaintiff pursuant to 28 U.S.C. ' 1915(e)(1).

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Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298,

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109 S.Ct. 1814, 1816 (1989). However, in certain exceptional circumstances the court may

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request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at

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1525.

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Without a reasonable method of securing and compensating counsel, the court will seek

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volunteer counsel only in the most serious and exceptional cases. In determining whether

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Aexceptional circumstances exist, the district court must evaluate both the likelihood of success

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Defendant filed an Answer to the First Amended Complaint on December 1, 2014. (Doc. 30.)
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of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the

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complexity of the legal issues involved.@ Id. (internal quotation marks and citations omitted).

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In the present case, the court does not find the required exceptional circumstances.

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Plaintiff argues that he is unable to afford counsel and his imprisonment will greatly limit his

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ability to litigate. This does not make Plaintiff’s case exceptional. This court is faced with

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similar cases daily. While the court has found that Plaintiff “states a cognizable claim for use

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of excessive force in violation of the Eighth Amendment against defendant Sergeant Matthew

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M. Juarez, Jr.,” (Doc. 16 at 5:12-13), this finding is not a determination that Plaintiff is likely to

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succeed on the merits and at this juncture, the court cannot find that Plaintiff is likely to

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succeed on the merits. Plaintiff’s claim for excessive force does not appear complex, and based

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on a review of the record in this case, the court does not find that plaintiff cannot adequately

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articulate his claims. Thus, the court does not find the required exceptional circumstances, and

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Plaintiff’s motion shall be denied without prejudice to renewal of the motion at a later stage of

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the proceedings.

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IV.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

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Plaintiff’s motion for leave to amend, filed on January 20, 2015, is DENIED;
and

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Plaintiff’s motion for appointment of counsel, filed on February 9, 2015, is
DENIED without prejudice.

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IT IS SO ORDERED.
Dated:

February 13, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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