Reddy v. Precyse Solutions, LLC et al

Filing 9

ORDER DENYING 6 Plaintiff's Motion to Appoint Counsel; ORDER DENYING 8 Plaintiff's Motion for Permission to File Pleadings and Other Papers Electronically; and ORDER GRANTING 7 Plaintiff's Motion for Extension of Time, signed by Magistrate Judge Stanley A Boone on 5/9/2013. Amended Complaint or Notice due within thirty (30) days. (Jessen, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

KRISHNA REDDY,

12
13
14
15

Case No. 1:12-cv-02061-AWI-SAB

Plaintiff,
v.
PRECYSE SOLUTIONS LLC, et al.,

ORDER DENYING PLAINTIFF'S MOTION FOR
APPOINTMENT OF COUNSEL AND MOTION
FOR PERMISSION TO FILE PLEADINGS AND
OTHER PAPERS ELECTRONICALLY AND
GRANTING PLAINTIFF'S MOTION FOR AN
EXTENSION OF TIME (ECF Nos. 6, 7, 8)

Defendants.
THIRTY-DAY DEADLINE

16
17

Plaintiff Krishna Reddy, appearing pro se and in forma pauperis in this action, filed this

18

action on December 19, 2012. (ECF No. 1.) On April 12, 2013, the Court screened Plaintiff's

19

complaint and found that it stated some cognizable claims and Plaintiff was ordered to either file

20

an amended complaint or notify the Court that she was willing to proceed on the cognizable

21

claims within thirty days. (ECF No. 5.) On May 8, 2013, Plaintiff filed a motion to appoint

22

counsel, a motion for an extension of time to respond to the April 12, 2013 order, and a motion

23

for permission to file pleadings electronically. (ECF Nos. 6, 7, 8.)

24

I.

25

MOTION FOR APPOINTMENT OF COUNSEL

26

Plaintiff states that she has contacted more than twenty five attorneys who have refused to

27

represent her in this action without payment of a retainer. Plaintiff alleges that it would be abuse

28

of discretion to fail to locate counsel under 42 U.S.C. § 2000e-5(f).
1

1

Generally, a plaintiff in a civil action does not have a constitutional right to appointed

2

counsel. Hernandez v. Whiting, 881 F.2d 768, 770-71 (9th Cir. 1989). The court has discretion

3

to appoint an attorney to represent "any person unable to afford counsel." 28 U.S.C. § 1915(e)(1).

4

Three factors the court should consider in determining whether to appoint counsel are the

5

plaintiff's financial resources, efforts the plaintiff has made to obtain counsel, and the merit of

6

plaintiff's claims. Johnson v. U.S. Dep't of Treasury, 939 F.2d 820, 823 (9th Cir. 1991).

7

Additionally, court appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1) requires

8

exceptional circumstances. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). " “A finding

9

of exceptional circumstances requires an evaluation of both ‘the likelihood of success on the

10

merits and the ability of the petitioner to articulate his claims pro se in light of the complexity of

11

the legal issues involved.’ Neither of these factors is dispositive and both must be viewed

12

together before reaching a decision.” Terrell, 935 F.2d at 1017 (quoting Wilborn v. Escalderon,

13

789 F.2d 1328, 1331 (9th Cir.1986)).

14

Pursuant to 42 U.S.C. § 2000e-5(f), "[u]pon application by the complainant and in such

15

circumstances as the court may deem just, the court may appoint an attorney for such complainant

16

and may authorize the commencement of the action without the payment of fees, costs, or

17

security." The decision to appoint counsel is within the discretion of the district court and the

18

court is not required to appoint counsel in every employment discrimination case. Johnson, 939

19

F.2d at 824 ).

20

Plaintiff argues that it would be an abuse of discretion to fail to locate counsel for her,

21

citing Howard v. Military Dep't, 5 F.3d 537 (9th Cir. 1993) (unpublished). In Howard the court

22

abused its discretion because it found that plaintiff's case was appropriate for the appointment of

23

an attorney, but did not appoint an attorney because there were no funds available for payment

24

and no method in place to allow for the appointment of a pro bono attorney. Howard, 5 F.3d at 1.

25

Howard holds that it is an abuse of discretion for the court to fail to appoint an attorney in an

26

action where the appointment is found to be appropriate, not that failure to appoint counsel is per

27

se abuse of discretion in an employment action. Therefore, the court shall address whether

28

Plaintiff's case is appropriate for appointment of counsel.
2

1

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

2

Plaintiff's motion for appointment of counsel.

Based upon a review of the complaint and

3

Plaintiff's filings in this action, Plaintiff is adequately able to articulate her claims. Further, a

4

review of court records reveals that Plaintiff is an experienced litigant, and several of her cases

5

involve similar claims to those raised here.1

6

Even if the Court assumes that Plaintiff is not well versed in the law and that she has made

7

serious allegations which, if proved, would entitle her to relief, her case is not exceptional. This

8

court is faced with similar cases almost daily. Further, at this early stage in the proceedings and

9

having carefully reviewed the complaint, the court cannot make a determination that Plaintiff is

10

likely to succeed on the merits of her claim. Plaintiff has failed to demonstrate that the required

11

exceptional circumstances exist which would support granting appointment of counsel.

12

Therefore, the Court denies Plaintiff's motion for appointment of counsel without prejudice.

13

II.

14

MOTION FOR PERMISSION TO FILE PLEADINGS AND
OTHER PAPERS THROUGH CM/ECF

15
16

Plaintiff seeks the Court's permission to file documents electronically through the

17

electronic case management/filing ("CM/ECF") system. Pursuant to the Local Rules , a pro se

18

party shall file and serve paper documents as required by the Rule. Local Rule 133(a). A party

19

appearing pro se may request an exception to the paper filing requirement from the court by filing

20

a stipulation of the parties or by motion. Local Rule 133(b)(2), (3).

21

Upon review of the pleadings in this action, the instant motion, and Plaintiff's prior

22

actions, the Court finds that this action does not warrant an exception to the Local Rule and

23
24
25
26
27
28

1

The Court takes judicial notice of court records and Plaintiff's previously filed pro se actions. Reddy v. Redlands
Community Hospital, 5:95-cv-00453-RT-VAP (C.D.Cal); Reddy v. Loma Linda Community Hospital, 8:97-cv00056-AHS-EE (C.D.Cal.); Reddy v. Superior & Municipal Court of California, 8:97-cv-00923-AHS-SH; In re
Krishna K. Reddy, 2:98-cv-03250-ABC (C.D.Cal.); Reddy v. Home Side Lending, 2:99-cv-04431-ABC-SH
(C.D.Cal.); Reddy v. United States District Court, 2:00-cv-01452-MMM (C.D.Cal.); Reddy v. State of Florida, 5:02cv-01187-RT-SGL (C.D.Cal); Reddy v. Medquist, Inc., 1:06-cv-04410-RBK-AMD (D.N.J); Reddy v. Gilbert
Medical Transcription Service, Inc., 2:10-cv-00524-JFW-DTB (C.D.Cal.); Reddy v. Webmedx, 2:12-cv-02406-CASJC (C.D.Cal.); Reddy v. Nuance Communications, Inc., 5:11-cv-05632-PSG (N.D.Cal.); Reddy v. Superior Global
Solutions, Inc., 4:11-cv-00845-RC-ALM (E.D.Tex.); Reddy v. Medquist, Inc., 5:12-cv-01325-PSG (N.D.Cal.).

3

1

Plaintiff's motion for permission to file through CM/ECF is denied.

2

III.

3

MOTION FOR EXTENSION OF TIME

4

Plaintiff seeks an extension of time to conduct research so she can file an amended

5

complaint in compliance with the Court's April 12, 2013 order. The Court shall grant Plaintiff's

6

request. However, Plaintiff is advised that her amended complaint shall not contain any legal

7

arguments or cite to any cases or statutes and if it violates this order, the amended complaint shall

8

be stricken from the record.

9

IV.

10

CONCLUSION AND ORDER

11

Based on the foregoing, IT IS HEREBY ORDERED that:

12

1.

Plaintiff's motion for appointment of counsel, filed May 8, 2013, is DENIED;

13

2.

Plaintiff's motion for permission to file pleadings and other papers electronically,

14

filed May 8, 2013, is DENIED;

15

3.

Plaintiff's motion for an extension of time, filed May 8, 2013, is GRANTED;

16

4.

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

17

file an amended complaint in compliance with this and the April 12, 2013 order or

18

notify the Court that she wishes to proceed on the claims found to be cognizable in

19

her complaint; and

20

5.

21

Failure to file an amended complaint or notice in compliance with this order will
result in this action being dismissed.

22
23
24

IT IS SO ORDERED.

25
Dated:
26

May 9, 2013

_

DEAC_Signature-END:

27

_

UNITED STATES MAGISTRATE JUDGE
i1eed4

28
4