Gardner v. Six Flags Discovery Kingdom et al

Filing 15

ORDER signed by Magistrate Judge Edmund F. Brennan on 7/5/2017 ORDERING the 5/3/2017 findings and recommendations 6 are VACATED; plaintiff's 11 motion for an extension of time to file an amended complaint is GRANTED; plaintiff's 6 /12/2017 amended complaint is deemed timely filed, but DISMISSED in light of plaintiff's request for another opportunity to amend; plaintiff's 13 motion for an extension of time to file a second amended complaint is GRANTED; plaintiff shall file a second amended complaint within 90 days, the court is not inclined to grant additional requests for extensions of time; and plaintiff's 10 motion for appointment of counsel is DENIED 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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DENNIS GARDNER,

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No. 2:15-cv-2085-WBS-EFB P

Plaintiff,
v.

ORDER

SIX FLAGS DISCOVERY KINGDOM, et
al.,
Defendants.

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Plaintiff is a county inmate proceeding without counsel in an action brought under 42

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U.S.C. § 1983. Pending before the court are two requests for extensions of time, an amended

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complaint, and a motion for appointment of counsel.

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Plaintiff’s June 7, 2017 request for an extension of time to file an amended complaint

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(ECF No. 11) is granted and plaintiff’s June 12, 2017 amended complaint (ECF No. 14) is

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deemed timely filed.1 However, plaintiff’s filing of a request for an extension of time to file a

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second amended complaint suggests that he does not wish to proceed on the amended complaint.

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ECF No. 13. Accordingly, the court will dismiss the amended complaint and grant plaintiff’s

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request for another opportunity to amend.

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In light of this filing, the May 3, 2017 findings and recommendations (ECF No. 6)
recommending this action be dismissed for failure to prosecute will be vacated.

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As to plaintiff’s request for appointment of counsel, district courts lack authority to

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require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States

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Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an

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attorney to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v.

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

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Cir. 1990). When determining whether “exceptional circumstances” exist, the court must

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consider the likelihood of success on the merits as well as the ability of the plaintiff to articulate

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his claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560

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F.3d 965, 970 (9th Cir. 2009). Having considered those factors, the court finds there are no

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exceptional circumstances in this case and the motion is denied.

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Accordingly, it is hereby ORDERED that:

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1.

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2. Plaintiff’s June 7, 2017 motion for an extension of time to file an amended complaint

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The May 3, 2017 findings and recommendations (ECF No. 6) are vacated;

(ECF No. 11) is granted;
3. Plaintiff’s June 12, 2017 amended complaint (ECF No. 14) is deemed timely filed, but
dismissed in light of plaintiff’s request for another opportunity to amend;
4. Plaintiff’s June 12, 2017 motion for an extension of time to file a second amended
complaint (ECF No. 13) is granted;

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5. Plaintiff shall file a second amended complaint within 90 days from the date of this

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order. Failure to so comply will result in another recommendation of dismissal for

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failure to prosecute. The court is not inclined to grant additional requests for

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extensions of time; and

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6. Plaintiff’s motion for appointment of counsel (ECF No. 10) is denied without

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prejudice.

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Dated: July 5, 2017.

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