Martinez v. Lizarraga et al

Filing 11

ORDER signed by Magistrate Judge Craig M. Kellison on 1/31/2018 DENYING as unnecessary 9 Motion to Combine, construed as a Motion for Leave to Amend, and DENYING 8 Request for Appointment of Counsel. Plaintiff may file a single amended complaint containing all his claims and documentation within 30 days of the date of this order. (Henshaw, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOAQUIN MARTINEZ,

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No. 2:16-CV-0831-JAM-CMK-P

Plaintiff,
vs.

ORDER

J. LIZARRAGA, et al.,
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) “Moushon to Combined” [sic]

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(Doc. 9) and (2) motion for the appointment of counsel (Doc. 8). Also before the court are

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additional exhibits filed on January 24, 2018 (Doc. 10).

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Turning to plaintiff’s “Moushon to Combined,” it appears that plaintiff seeks

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leave to amend his complaint to incorporate additional documentation. Pursuant to Federal Rule

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of 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. Because no responsive pleading has been filed,

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leave of court is not required before filing an amended complaint and plaintiff’s motion will be

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denied as unnecessary. To the extent plaintiff wishes to incorporate additional exhibits and/or
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allegations in his original complaint, plaintiff may file a single amended complaint that includes

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all his allegations and documentation he wishes to include. Plaintiff is advised that, if no

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amended complaint is filed within the time provided, this action will proceed on plaintiff’s

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original complaint without reference to any additional documents. See Local Rule 220.

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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. Plaintiff’s “next friend,” inmate Anthony Ivan Bobadilla, states that he has been

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assisting plaintiff will all his court documents and that, due to his transfer to a different prison, he

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will no longer be able to assist plaintiff and, therefore, that plaintiff requires the appointment of

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counsel. This circumstance is not unique or extraordinary. Furthermore, because plaintiff has

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not submitted a single pleading containing all his claims and documentation, the court cannot

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evaluate the complexity of his claims or the likelihood of success on the merits. Finally, because

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it is unclear whether plaintiff or his next friend Mr. Bobadilla or someone else prepared the

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pleadings currently on file, the court cannot evaluate at this time plaintiff’s ability to articulate

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his claims on his own.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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Plaintiff’s “Moushon to Combined” (Doc. 9) is construed as a motion for

leave to amend and, so construed, the motion is denied as unnecessary;
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Plaintiff may file a single amended complaint containing all his claims and

documentation within 30 days of the date of this order;
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If plaintiff does not file an amended complaint within the time provided,

this action will proceed on plaintiff’s original complaint; and
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Plaintiff’s request for the appointment of counsel (Doc. 8) is denied.

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DATED: January 31, 2018
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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