Lewis v. IRS et al

Filing 13

ORDER VACATING #9 Findings and Recommendations, Recommending that Certain Claims and Defendants be Dismissed; ORDER Vacating #8 Order Authorizing Service of the Complaint; ORDER Granting #12 Leave to File Amended Complaint; ORDER Denying Motion to Appoint Counsel signed by Magistrate Judge Erica P. Grosjean on 01/06/2022. Amended Complaint due by February 4, 2021.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DEANDRE LEWIS,
Plaintiff,

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v.
IRS, et al.,
Defendants.

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Case No. 1:21-cv-01653-NONE-EPG
ORDER VACATING FINDINGS AND
RECOMMENDATIONS,
RECOMMENDING THAT CERTAIN
CLAIMS AND DEFENDANTS BE
DISMISSED
ORDER VACATING ORDER
AUTHORIZING SERVICE OF THE
COMPLAINT
ORDER GRANTING LEAVE TO FILE
AMENDED COMPLAINT

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ORDER DENYING MOTION TO
APPOINT COUNSEL

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(ECF NOS. 8, 9, 11, 12)

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Plaintiff Deandre Lewis is a state inmate proceeding pro se and in forma pauperis in
this civil action.

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Plaintiff filed his complaint on November 15, 2021. (ECF No. 1). The Court screened

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Plaintiff’s complaint on December 3, 2021. (ECF No. 5). The Court concluded that Plaintiff’s

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claims against the IRS and the Department of Treasury regarding his failure to receive

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economic impact payments should proceed past screening but that the complaint failed to state

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any other claims. The Court allowed Plaintiff to choose between proceeding only on the claims

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found cognizable by the Court in the screening order, filing an amended the complaint, or

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standing on his complaint.
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On December 17, 2021, Plaintiff notified the Court that he wants to proceed only on the

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claims found cognizable in the screening order. (ECF No. 7). Accordingly, on December 27,

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2021, the Court issued findings and recommendations, recommending that all claims and

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defendants be dismissed, except for Plaintiff’s claims against the IRS and the Department of

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Treasury regarding his failure to receive economic impact payments. (ECF No. 9).

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Additionally, the Court entered an order on this same date authorizing service of the complaint.

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(ECF No. 8).

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Motion to Amend Complaint

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However, on January 5, 2022, Plaintiff filed a motion to amend his complaint under

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Federal Rule of Civil Procedure 15(a) to add more facts and legal claims against Defendants

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Experian and Transunion, which Defendants the Court concluded in its screening order and

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findings and recommendations should be dismissed based on Plaintiff’s failure to state a claim

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against them. (ECF No. 12). Under Rule 15(a)(1), a Plaintiff may amend his pleading once as a

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matter of right within twenty-one days of serving the pleading, and, “if the pleading is one to

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which a responsive pleading is required, [twenty-one] days after service of a responsive

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pleading or [twenty-one] days after service of a motion under Rule 12(b), (e), or (f), whichever

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is earlier.” Here, the docket reflects that no Defendant has yet been served. Accordingly, the

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Court will grant Plaintiff’s motion to amend his complaint and vacate its findings and

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recommendations and order authorizing service of the initial complaint.

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2.

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Also, on January 5, 2022, Plaintiff filed a motion requesting that the court appoint him

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counsel based on his unspecified learning disability. (ECF No. 11). Attached to the motion is a

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form titled, “Valley State Prison Reasonable Accommodation Panal (RAP) Decision Effective

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Communication Confirmation.” The form checks a box indicating that Plaintiff is “[l]earning

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disabled” and that a “CDCR 1824 RAP RESPONSE” was being read to Plaintiff in simple

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English spoken slowly and clearly. Plaintiff states that Title II of the Americans with

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Disabilities Act (ADA) requires “people with disabilities [to be given] an equal opportunity.”

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Motion to Appoint Counsel

Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.
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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d

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952 (9th Cir. 1998), and the Court cannot require an attorney to represent Plaintiff pursuant to

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28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of

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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 of

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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. (citation and internal quotation marks omitted).

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The Court will not order appointment of pro bono counsel at this time. Notably,

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Plaintiff was able to sufficiently articulate some claims in his initial complaint that the Court

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found cognizable for screening purposes. Moreover, as Plaintiff intends to file an amended

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complaint, which will supersede his initial complaint, the Court is unable to evaluate the

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likelihood of success on the merits of any claim. Lastly, even assuming Plaintiff has a

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qualifying disability under the ADA, Plaintiff has not shown that the ADA requires the Court to

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appoint him counsel, and other courts have denied similar arguments. See Meeks v. Nunez, No.

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13CV973-GPC(BGS), 2017 WL 476425, at *4 (S.D. Cal. Feb. 6, 2017); cf. Hudson v. Tyson

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Foods, Inc., No. 5:16-CV-402 (MTT), 2016 WL 11655175, at *1 (M.D. Ga. Sept. 20, 2016)

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(“There is no automatic right to appointed counsel in an ADA case.”).

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Plaintiff is advised that he is not precluded from renewing his motion for appointment
of pro bono counsel at a later stage of the proceedings.
For the foregoing reasons, IT IS ORDERED as follows:

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1. The Court vacates its December 27, 2021 findings and recommendations (ECF No. 9).

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2. The Court vacates its order authorizing service of the initial complaint (ECF No. 8). The

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Clerk shall provide a copy of the instant order to the United States Marshals Service,

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who is directed to NOT serve the initial complaint (ECF Nos. 1, 8).
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3. Plaintiff’s motion for leave to amend his complaint (ECF No. 12) is granted.

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a. Plaintiff shall file an amended complaint no later than February 4, 2021.

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b. Plaintiff shall caption the amended complaint “First Amended Complaint,” refer

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to case number 1:21-cv-01653-NONE-EPG.

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c. Plaintiff is advised that an amended complaint supersedes the original complaint,

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Lacey v. Maricopa County, 693 F 3d. 896, 907 n.1 (9th Cir. 2012) (en banc), and

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it must be complete in itself without reference to the prior or superseded pleading,

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Local Rule 220.

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d. Plaintiff’s amended complaint he must state what each named defendant did that

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led to the deprivation of his constitutional or other federal rights. Fed. R. Civ. P.

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8(a); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

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e. After Plaintiff files an amended complaint, the Court will screen that amended

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complaint in due course.
4. Plaintiff’s motion to appoint counsel (ECF No. 11) is denied without prejudice.

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IT IS SO ORDERED.
Dated:

January 6, 2022

/s/
UNITED STATES MAGISTRATE JUDGE

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