Edwards v. McDonald et al
Filing
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ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 06/27/11 ORDERING plaintiff's request for appointment of counsel 10 is denied. Also, RECOMMENDING that for the reasons set forth in the 03/04/11 order 8 , the amended complaint be dismissed; and plaintiff having been granted ample opportunity to amend, this case be closed. Referred to Judge Garland E. Burrell. Objections due within 14 days.(Plummer, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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BRIAN EDWARDS,
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Plaintiff,
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No. CIV S-10-2852 GEB GGH P
vs.
H.D.S.P., et al.
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ORDER and
Defendants.
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FINDINGS AND RECOMMENDATIONS
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This case was removed to federal court from Lassen County Superior Court
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pursuant to 28 U.S.C. § 1441(b) on the basis that this court has original jurisdiction of plaintiff’s
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claims arising under the First and Fourteenth Amendments. Plaintiff is a state prisoner
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proceeding pro se under 42 U.S.C. § 1983. See Docket # 2. Defendants have paid the filing fee.
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The complaint was dismissed with leave to amend in an order, filed on March 4,
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2011, wherein the court informed plaintiff of the deficiencies in his complaint. Plaintiff filed a
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timely amended complaint but therein plaintiff has failed to cure the defects as set forth in the
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March 4, 2011, order, which is incorporated by reference herein. The amended complaint is
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nearly substantively identical to the dismissed complaint. Therefore, the court will now
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recommend dismissal of this action.
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“Liberality in granting a plaintiff leave to amend ‘is subject to the qualification
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that the amendment not cause undue prejudice to the defendant, is not sought in bad faith, and is
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not futile.’” Thornton v. McClatchy Newspapers, Inc., 261 F.3d 789, 799 (9th Cir. 2001),
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quoting Bowles v. Reade, 198 F.3d 752, 757 (9th Cir. 1999). “Under Ninth Circuit case law,
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district courts are only required to grant leave to amend if a complaint can possibly be saved.
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Courts are not required to grant leave to amend if a complaint lacks merit entirely.” Lopez v.
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Smith, 203 F.3d 1122, 1129 (9th Cir. 2000). See also, Smith v. Pacific Properties and
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Development Corp., 358 F.3d 1097, 1106 (9th Cir. 2004), citing Doe v. United States, 58 F.3d
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494, 497(9th Cir. 1995) (“a district court should grant leave to amend even if no request to
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amend the pleading was made, unless it determines that the pleading could not be cured by the
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allegation of other facts.”). Lopez v. Smith, 203 F.3d 1122, 1124 (9th Cir. 2000) (“[A] district
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court retains its discretion over the terms of a dismissal for failure to state a claim, including
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whether to make the dismissal with or without leave to amend.”)
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Plaintiff’s Request
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Plaintiff has requested the appointment of counsel. The United States Supreme
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Court has ruled that district courts lack authority to require counsel to represent indigent
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prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In
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certain exceptional circumstances, the court may request the voluntary assistance of counsel
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pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991);
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Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). In the present case, the court
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does not find the required exceptional circumstances. Plaintiff’s request for the appointment of
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counsel will therefore be denied.
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Accordingly, IT IS ORDERED that plaintiff’s request for appointment of counsel,
filed on March 24, 2011 (docket # 10), be denied.
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IT IS RECOMMENDED that:
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1. For the reasons set forth in the March 4, 2011 (docket # 8), order, the amended
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complaint be dismissed; and
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2. Plaintiff having been granted ample opportunity to amend, this case be closed.
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These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen
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days after being served with these findings and recommendations plaintiff may file written
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objections with the court. Such a document should be captioned “Objections to Magistrate
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Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections
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within the specified time may waive the right to appeal the District Court's order. Martinez v.
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Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: June 27, 2011
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/s/ Gregory G. Hollows
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GREGORY G. HOLLOWS
UNITED STATES MAGISTRATE JUDGE
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GGH:009
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edwa2852.ofr
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