Williams v. Lozano et al

Filing 19

ORDER DENYING without prejudice 18 Motion to Appoint Counsel ; ORDER EXTENDING Deadline to File Second Amended Complaint, signed by Magistrate Judge Barbara A. McAuliffe on 01/11/18. (30-Day Deadline) (Attachments: # 1 Amended Complaint Form) (Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 JOHN ERIC WILLIAMS, also known as Michael J. Coleman, Plaintiff, 13 ORDER DENYING MOTION TO APPOINT COUNSEL WITHOUT PREJUDICE (ECF No. 18) v. 14 15 Case No. 1:15-cv-01250-BAM (PC) L. LOZANO, et al., Defendants. 16 ORDER EXTENDING DEADLINE TO FILE SECOND AMENDED COMPLAINT THIRTY (30) DAY DEADLINE Plaintiff John Eric Williams, also known as Michael J. Coleman (“Plaintiff”) is a state 17 18 prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. 19 § 1983. 20 On December 1, 2017, the Court issued an order finding that Plaintiff’s first amended 21 complaint failed to comply with Federal Rules of Civil Procedure 8, 18, and 20 and failed to state 22 a cognizable claim for relief. The Court granted Plaintiff a final opportunity to amend his 23 complaint, and directed him to file a second amended complaint within thirty (30) days from the 24 date of service of that order. (ECF No. 17.) The Court expressly warned Plaintiff that the failure 25 to file an amended complaint in compliance with the Court’s order would result in this action 26 being dismissed for failure to obey a court order and for failure to state a claim. (Id. at 13.) The 27 deadline for Plaintiff to file an amended complaint has passed, and he has not complied with the 28 Court’s order. 1 1 Rather than filing an amended complaint, on January 5, 2018, Plaintiff filed a motion to 2 appoint counsel. (ECF No. 18.) Plaintiff explains that he is unable to afford counsel, he is 3 mentally ill and has been placed in mental health crisis beds and mental hospitals, and his 4 imprisonment limits his ability to litigate. Plaintiff states that his case presents meritorious 5 claims, as shown by the Court’s screening order that allows him to proceed. Plaintiff argues that 6 he might suffer retaliation from prison officials for investigating his claim. He further asserts that 7 the case may be strongly disputed by defendants, and require depositions and evidence better 8 accessed by counsel. (Id.) Plaintiff attaches various exhibits purportedly relating to his mental 9 health records. 10 As Plaintiff has been informed, he does not have a constitutional right to appointed 11 counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on 12 other grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998), and the court cannot require an attorney to 13 represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. 14 of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court may 15 request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 16 1525. 17 Without a reasonable method of securing and compensating counsel, the Court will seek 18 volunteer counsel only in the most serious and exceptional cases. In determining whether 19 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 20 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 21 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 22 The Court has considered Plaintiff’s renewed motion for the appointment of counsel, but 23 does not find the required exceptional circumstances. Even if it is assumed that Plaintiff is not 24 well versed in the law and that he has made serious allegations which, if proved, would entitle 25 him to relief, his case is not exceptional. This Court is faced with similar cases filed by prisoners 26 proceeding pro se and suffering from serious physical and mental health conditions almost daily. 27 These prisoners also must conduct legal research and prosecute claims without the assistance of 28 counsel. 2 1 Furthermore, at this stage in the proceedings, the Court cannot make a determination that 2 Plaintiff is likely to succeed on the merits. Further, given Plaintiff’s failure to state a claim thus 3 far, the Court cannot find any likelihood of success on the merits. As discussed, Plaintiff has not 4 yet filed a second amended complaint. Once he has done so, the second amended complaint will 5 be screened to determine whether Plaintiff has articulated a cognizable claim. The Court’s 6 issuance of a screening order, without a finding that Plaintiff has stated a cognizable claim, does 7 not demonstrate that Plaintiff’s claims are likely to succeed on the merits. 8 Upon consideration of the motion, the Court finds it appropriate to grant Plaintiff a brief 9 extension of time to file a second amended complaint. Plaintiff is reminded, pursuant to the 10 Court’s December 1, 2017, screening order, that he may only amend his complaint to address 11 claims arising from the June 2015 incident, and his amended complaint may not exceed twenty- 12 five (25) pages. 13 Accordingly, IT IS HEREBY ORDERED that: 14 1. Plaintiff’s motion to appoint counsel (ECF No. 18) is DENIED, without prejudice; 15 2. The Clerk’s office shall send Plaintiff a complaint form; 16 3. Within thirty (30) days from the date of service of this order, Plaintiff shall file a 17 18 second amended complaint; and 4. If Plaintiff fails to file an amended complaint in compliance with this order, the 19 Court will recommend dismissal of this action, with prejudice, for failure to obey 20 a court order and for failure to state a claim. 21 22 23 IT IS SO ORDERED. Dated: /s/ Barbara January 11, 2018 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 3

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