Woods v. Krause et al

Filing 16

ORDER signed by Magistrate Judge Craig M. Kellison on 03/10/16 denying 5 Motion to Appoint Counsel and denying 8 Motion to Amend the Complaint. Plaintiff may file an amended complaint within 30 days of the date of this order. (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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TAJHIKEEM WOODS,

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Plaintiff,

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vs.

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No. 2:15-CV-1474-JAM-CMK-P

KRAUSE, et al.,

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ORDER

Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Pending before the court are plaintiff’s: (1) motion for leave to amend (Doc.

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8) and; (2) motion for the appointment of counsel (Doc. 5). Plaintiff’s “Motion for Court Order

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to Release Property” (Doc. 7) will be addressed separately.

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Plaintiff seeks leave to file an amended complaint. Pursuant to Federal Rule of

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Civil Procedure 15(a)(1), a party may amend his pleading once as a matter of right at any time

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before being served with a responsive pleading. A review of the docket reflects that no

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responsive pleading has been served. Therefore, plaintiff’s motion will be denied as

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unnecessary. Because no amended complaint was submitted with plaintiff’s motion, the action

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will proceed on the original complaint unless plaintiff files an amended complaint within the

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time provided in this order.
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Plaintiff seeks the appointment of counsel. The United States Supreme Court has

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ruled that district courts lack authority to require counsel to represent indigent prisoners in

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§ 1983 cases. See Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain

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exceptional circumstances, the court may request the voluntary assistance of counsel pursuant to

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28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v.

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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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In the present case, the court does not at this time find the required exceptional

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circumstances. Specifically, plaintiff has demonstrated an ability to present articulate pleadings

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and motions to this court. In addition, given plaintiff’s apparent intention to amend his

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complaint, the court cannot say at this stage in the proceedings that plaintiff has a likelihood of

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success on the merits.

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s motion for the appointment of counsel (Doc. 5) is denied;

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Plaintiff’s motion for leave to amend (Doc. 8) is denied as unnecessary;

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Plaintiff may file an amended complaint within 30 days of the date of this

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and

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order.

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DATED: March 10, 2016
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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