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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHN ERIC WILLIAMS,
also known as Michael J. Coleman,
Plaintiff,

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ORDER DENYING MOTION TO APPOINT
COUNSEL WITHOUT PREJUDICE
(ECF No. 18)

v.

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Case No. 1:15-cv-01250-BAM (PC)

L. LOZANO, et al.,
Defendants.

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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

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prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C.

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§ 1983.

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On December 1, 2017, the Court issued an order finding that Plaintiff’s first amended

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complaint failed to comply with Federal Rules of Civil Procedure 8, 18, and 20 and failed to state

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a cognizable claim for relief. The Court granted Plaintiff a final opportunity to amend his

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complaint, and directed him to file a second amended complaint within thirty (30) days from the

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date of service of that order. (ECF No. 17.) The Court expressly warned Plaintiff that the failure

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to file an amended complaint in compliance with the Court’s order would result in this action

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being dismissed for failure to obey a court order and for failure to state a claim. (Id. at 13.) The

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deadline for Plaintiff to file an amended complaint has passed, and he has not complied with the

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Court’s order.
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Rather than filing an amended complaint, on January 5, 2018, Plaintiff filed a motion to

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appoint counsel. (ECF No. 18.) Plaintiff explains that he is unable to afford counsel, he is

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mentally ill and has been placed in mental health crisis beds and mental hospitals, and his

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imprisonment limits his ability to litigate. Plaintiff states that his case presents meritorious

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claims, as shown by the Court’s screening order that allows him to proceed. Plaintiff argues that

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he might suffer retaliation from prison officials for investigating his claim. He further asserts that

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the case may be strongly disputed by defendants, and require depositions and evidence better

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accessed by counsel. (Id.) Plaintiff attaches various exhibits purportedly relating to his mental

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health records.

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As Plaintiff has been informed, he does not have a constitutional right to appointed

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counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on

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other grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998), and the court cannot require an attorney to

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represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist.

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of Iowa, 490 U.S. 296, 298 (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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“exceptional circumstances exist, a district court must evaluate both the likelihood of success on

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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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The Court has considered Plaintiff’s renewed motion for the appointment of counsel, but

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does not find the required exceptional circumstances. Even if it is assumed that Plaintiff is not

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well versed in the law and that he has made serious allegations which, if proved, would entitle

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him to relief, his case is not exceptional. This Court is faced with similar cases filed by prisoners

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proceeding pro se and suffering from serious physical and mental health conditions almost daily.

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These prisoners also must conduct legal research and prosecute claims without the assistance of

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counsel.
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Furthermore, at this stage in the proceedings, the Court cannot make a determination that

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Plaintiff is likely to succeed on the merits. Further, given Plaintiff’s failure to state a claim thus

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far, the Court cannot find any likelihood of success on the merits. As discussed, Plaintiff has not

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yet filed a second amended complaint. Once he has done so, the second amended complaint will

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be screened to determine whether Plaintiff has articulated a cognizable claim. The Court’s

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issuance of a screening order, without a finding that Plaintiff has stated a cognizable claim, does

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not demonstrate that Plaintiff’s claims are likely to succeed on the merits.

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Upon consideration of the motion, the Court finds it appropriate to grant Plaintiff a brief

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extension of time to file a second amended complaint. Plaintiff is reminded, pursuant to the

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Court’s December 1, 2017, screening order, that he may only amend his complaint to address

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claims arising from the June 2015 incident, and his amended complaint may not exceed twenty-

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five (25) pages.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to appoint counsel (ECF No. 18) is DENIED, without prejudice;

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2. The Clerk’s office shall send Plaintiff a complaint form;

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3. Within thirty (30) days from the date of service of this order, Plaintiff shall file a

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second amended complaint; and
4. If Plaintiff fails to file an amended complaint in compliance with this order, the

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Court will recommend dismissal of this action, with prejudice, for failure to obey

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a court order and for failure to state a claim.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

January 11, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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