Crossley v. Niazi et al

Filing 37

ORDER signed by Magistrate Judge Carolyn K. Delaney on 8/23/2013 DENYING plaintiff's 32 motion for a bench trial, as premature; DENYING plaintiff's 33 motion to amend the complaint ; and DENYING plaintiff's 34 motion to appoint counsel, without prejudice. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LAMONT CROSSLEY,

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No. 2:12-cv-2180 LKK CKD P

Plaintiff,
v.

ORDER

ABE NIAZI, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with this civil rights

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action pursuant to 42 U.S.C. § 1983. This action proceeds against four medical defendants on the

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complaint filed November 9, 2012, which alleges inadequate medical care of plaintiff’s broken

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right hand between surgeries in 2010 and 2011. The case is in the discovery phase. Before the

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court are three pending motions by plaintiff.

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I. Motion to Amend

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Plaintiff seeks leave to file a second amended complaint. He states that he wishes to

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“summarize facts in support of his claim in order to correct misconceptions.” (ECF No. 33 at 1.)

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He also seeks to allege additional facts against defendants Niazi and Galloway regarding the

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medical treatment of his hand. Plaintiff has not attached a proposed second amended complaint.

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Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend shall be given

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freely when justice requires. In deciding whether justice requires granting leave to amend, factors

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to be considered include the presence or absence of undue delay, bad faith, dilatory motive,

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repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing

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party and futility of the proposed amendment. Forman v. Davis, 371 U.S. 178, 182 (1962).

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Here, defendants do not oppose plaintiff’s motion. (ECF No. 36.) However, plaintiff has

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not demonstrated that justice requires leave to amend in this instance. Plaintiff has made detailed

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allegations in the operative complaint and will have the opportunity to submit any additional

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documents that tend to support his medical indifference claims against defendants. Moreover,

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plaintiff offers no good reason why the changes he now proposes were not made in the operative

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complaint. Accordingly, the court will decline to grant leave to amend under Rule 15(a).

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II. Motion to Appoint Counsel

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Plaintiff has requested the appointment of counsel. (ECF No. 34.) The United States

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Supreme 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 without prejudice to renewing the motion at a later stage of the

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proceedings.

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III. Motion for Bench Trial

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Finally, plaintiff has requested a bench trial. (ECF No. 32.) Defendants have requested a

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jury trial. (ECF No. 23.) Given that dispositive motions have not been filed, plaintiff’s motion is

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premature. The court will take up this matter in its pretrial order, if any such issues.

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Accordingly, IT IS HEREBY ORDERED THAT:

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1. Plaintiff’s motion for a bench trial (ECF No. 32) is denied as premature;

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2. Plaintiff’s motion to amend the complaint (ECF No. 33) is denied; and

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3. Plaintiff’s motion to appoint counsel (ECF No. 34) is denied without prejudice to

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renewal at a later stage of the litigation.

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Dated: August 23, 2013

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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