Boston v. Garcia et al

Filing 17

ORDER signed by Magistrate Judge Dale A. Drozd on 5/10/2011 ORDERING that plaintiff's 16 objections construed as a request for reconsideration is DENIED. (Duong, D)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANDRE’ BOSTON,

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Plaintiff,

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vs.

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No. CIV S-10-1782 KJM DAD P

V. GARCIA et al.,

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Defendants.

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ORDER

Plaintiff is a state prisoner proceeding pro se and in forma pauperis. Plaintiff
seeks relief pursuant to 42 U.S.C. § 1983.

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On March 11, 2011, the undersigned found that plaintiff’s complaint appeared to

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state an Eighth Amendment claim against defendants Garcia, Alkire, and Renauld. The

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undersigned also found, however, that plaintiff’s complaint did not state a cognizable claim

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against defendants Bayles, Reinsel, and Grannis for the way in which they allegedly responded to

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his inmate appeals or against defendants Aguila, McDonald, John Doe, and Jane Doe because

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plaintiff failed to allege an actual connection or link between the actions of these latter

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defendants and the deprivation alleged to have been suffered by plaintiff. Finally, the court

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denied plaintiff’s motion for appointment of counsel.

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Plaintiff has filed objections to the court’s “dismissal” of defendants Bayles,

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Reinsel, Grannis, Aguila, McDonald, John Doe, and Jane Doe. Plaintiff is advised that this court

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did not dismiss these defendants. However, as noted above, the court did find that plaintiff’s

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complaint failed to state a cognizable claim against them and therefore did not order service of

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these defendants. Plaintiff is advised that the Federal Rules of Civil Procedure provide that a

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party may amend his or her pleading “once as a matter of course at any time before a responsive

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pleading is served.” Fed. R. Civ. P. 15(a). No responsive pleading has yet been served in this

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matter. Thus, plaintiff may file an amended complaint in an attempt to state a cognizable claim

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against these defendants. However, plaintiff is strongly cautioned that the court cannot refer to a

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prior pleading to make plaintiff’s amended complaint complete. Local Rule 220 requires that an

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amended complaint be complete in itself without reference to any prior pleading. This is

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because, as a general rule, an amended complaint supersedes the original complaint. See Loux v.

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Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original

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pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an

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original complaint, plaintiff must include sufficient factual allegations against all of the

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defendants, including defendants Garcia, Alkire, and Renauld.

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As to plaintiff’s objections to the denial of his motion for appointment of counsel,

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the undersigned has construed the objections as a request for reconsideration. As the court

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previously advised plaintiff, the United States Supreme Court has ruled that district courts lack

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authority to require counsel to represent indigent prisoners in § 1983 cases. Mallard v. United

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States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the district

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court may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell

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v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36

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(9th Cir. 1990).

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The test for exceptional circumstances requires the court to evaluate the plaintiff’s

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likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in
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light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328,

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1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances

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common to most prisoners, such as lack of legal education and limited law library access, do not

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establish exceptional circumstances that would warrant a request for voluntary assistance of

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

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s objections construed as a

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request for reconsideration (Doc. No. 16) is denied.

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DATED: May 10, 2011.

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DAD:9
bost1782.objs

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