Young v. Qureshi

Filing 18

ORDER signed by Magistrate Judge Kendall J. Newman on 3/17/2017 DENYING, without prejudice, plaintiff's 16 motion to file a supplemental complaint and motion for appointment of counsel. (Yin, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANNY GEROME YOUNG, 12 13 14 15 No. 2:15-cv-2674 KJN P Plaintiff, v. ORDER MUHAMMAD QURESHI, et al., Defendants. 16 17 18 19 Plaintiff is a state prisoner, proceeding pro se, with this civil rights action seeking relief pursuant to 42 U.S.C. § 1983. On February 9, 2016, plaintiff filed a motion for leave to file a supplemental complaint. 20 Plaintiff’s motion was not, however, accompanied by a proposed supplemental complaint. As a 21 prisoner, plaintiff’s pleadings are subject to evaluation by this court pursuant to the in forma 22 pauperis statute. See 28 U.S.C. § 1915A. Because plaintiff did not submit a proposed 23 supplemental complaint, the court is unable to evaluate it. 24 leave to file a supplemental complaint is denied. 25 For this reason, plaintiff’s motion for If plaintiff chooses to file a supplemental complaint, plaintiff must demonstrate how the 26 conditions about which he complains resulted in a deprivation of plaintiff’s constitutional rights. 27 Rizzo v. Goode, 423 U.S. 362, 371 (1976). Also, the complaint must allege in specific terms how 28 each named defendant is involved. Id. There can be no liability under 42 U.S.C. § 1983 unless 1 1 there is some affirmative link or connection between a defendant’s actions and the claimed 2 deprivation. Id.; May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 3 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory allegations of official participation 4 in civil rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 5 1982). 6 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 7 make plaintiff’s supplemental complaint complete. Local Rule 220 requires that a supplemental 8 complaint be complete in itself without reference to any prior pleading. This requirement exists 9 because, as a general rule, a supplemental complaint supersedes the original complaint. See Loux 10 v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files a supplemental complaint, the 11 original pleading no longer serves any function in the case. Therefore, in a supplemental 12 complaint, as in an original complaint, each claim and the involvement of each defendant must be 13 sufficiently alleged. 14 Plaintiff also requests that the court appoint counsel. District courts lack authority to 15 require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States 16 Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an 17 attorney to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 18 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 19 1990). When determining whether “exceptional circumstances” exist, the court must consider 20 plaintiff’s likelihood of success on the merits as well as the ability of the plaintiff to articulate his 21 claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 22 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). 23 The burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances 24 common to most prisoners, such as lack of legal education and limited law library access, do not 25 establish exceptional circumstances that warrant a request for voluntary assistance of counsel. 26 Having considered the factors under Palmer, the court finds that plaintiff has failed to 27 meet his burden of demonstrating exceptional circumstances warranting the appointment of 28 counsel at this time. 2 1 Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion to file a supplemental 2 complaint and motion for appointment of counsel (ECF No. 16) are denied without prejudice. 3 Dated: March 17, 2017 4 5 6 7 Yo2674.10b 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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