McColm v. Trinity County et al

Filing 20

ORDER signed by Magistrate Judge Craig M. Kellison on 9/22/16 ORDERING that Plaintiff's MOTION for Extension of time to file an amended complaint 18 is GRANTED; Plaintiff shall file an amended complaint within 90 days of the date of this ord er. Plaintiff's Request to seal the exhibits to her motion is granted; The Clerk of the Court is directed to seal the exhibits attached to her MOTION for an Extension of time (Doc. 18 ); and Plaintiff's MOTION for appointment of counsel (Doc. 19 ) is DENIED. (Mena-Sanchez, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PATRICIA A. McCOLM,

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No. 2:12-cv-1984-MCE-CMK

Plaintiff,
vs.

ORDER

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TRINITY COUNTY, et al.,

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Defendants.

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Plaintiff, proceeding pro se, brings this civil action. Pending before the court is

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plaintiff’s third motion for an extension of time to file an amended complaint (Doc. 18) and

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motion for the appointment of counsel (Doc. 19).

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Plaintiff’s original complaint was dismissed with leave to amend in March 2016.

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Thus far, plaintiff has had over six months to file her amended complaint. The court is aware

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that plaintiff is attending to numerous medical issues. However, the court is not able to extend

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the time for plaintiff to file an amended complaint indefinitely. Her request for additional time

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will be granted. However, plaintiff was provided specific information on what was required in

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order to state a claim in an amended complaint. Six months in which to follow that direction,

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even given plaintiff’s medical issues, does not appear to be unreasonable. The court will not be
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inclined to grant any additional time to complete and file an amended complaint. Plaintiff is

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again warned that failure to file an amended complaint within the time provided may result in

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dismissal of this action for lack of prosecution and failure to comply with court rules and orders.

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See Local Rule 110.

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Within plaintiff’s motion for additional time, she provided the court with medical

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records to support her showing of good cause. She has requested these documents be sealed and

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not available to the public as they contain private and confidential medical information. This

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request will be honored, and the Clerk of the Court will be directed to seal the exhibits to her

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motion.

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Finally, plaintiff has filed a second request for the appointment of counsel.

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Plaintiff’s original request was denied without a finding of exceptional circumstances. The

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undersigned finds no change in that analysis. As the court previously stated, a plaintiff in a civil

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case generally has no right to appointed counsel. See Hernandez v. Whiting, 881 F.2d 768,

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770-71 (9th Cir. 1989); United States v. 30.64 Acres, 795 F.2d 796, 801 (9th Cir. 1986). 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). See 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). A finding of “exceptional

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circumstances” requires an evaluation of both the likelihood of success on the merits and the

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ability of the plaintiff to articulate his claims on his own in light of the complexity of the legal

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issues involved. See Terrell, 935 F.2d at 1017. Neither factor is dispositive and both must be

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viewed together before reaching a decision. See id.

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The exceptional circumstances analysis has not changed. At this stage of the

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proceedings, it does not appear that plaintiff has any likelihood of success on the merits as she

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has not been successful in filing a complaint which states a claim. While plaintiff indicates an

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attorney would be better able to articulate her claims, there is an underlying requirement that she

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be able to show a likelihood of success on the merits. Here, where a number of the defendants
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she named in the original complaint are immune from suit, and the remainder of her claims were

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so vague and conclusory the court could not well evaluate them, she has not shown any

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likelihood of success on the merits. Plaintiff also claims her medical condition precludes her

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from litigating this action on her own. However, as the court previously found, she appears

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capable of articulating her claims as her pleadings are sufficiently legible and articulate.

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s motion for an extension of time to file an amended complaint

(Doc. 18) is granted;

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2.

Plaintiff shall file an amended complaint within 90 days of the date of this

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3.

Plaintiff’s request to seal the exhibits to her motion is granted;

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The Clerk of the Court is directed to seal the exhibits attached to her

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order;

motion for an extension of time (Doc. 18); and
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Plaintiff’s motion for appointment of counsel (Doc. 19) is denied.

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DATED: September 22, 2016
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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