Hernandez v. Thomas

Filing 27

ORDER signed by Magistrate Judge Craig M. Kellison on 7/24/18 DENYING 10 Motion for Extension OF time; DENYING 20 , 23 Motions for leave to amend; The amended complaint filed on 4/27/18 24 is stricken; DENYING 18 Motion for leave to lodge documentary evidence; DENYING 15 Motion to Appoint Counsel ; GRANTING 16 Motion for Extension of time. Plaintiff may file an opposition to defendant's motion to dismiss 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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ANTHONY HERNANDEZ,

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Plaintiff,
vs.

ORDER

THOMAS,
Defendant.

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No. 2:17-CV-1803-KJM-CMK-P

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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: (1) plaintiff’s motions for leave to amend (Docs.

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20 and 23); (2) plaintiff’s motion for the appointment of counsel (Doc. 15); (3) plaintiff’s motion

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for an extension of time to serve defendant (Doc. 10); (4) plaintiff’s motion for an extension of

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time to respond to defendant’s motion to dismiss (Doc. 16); and (5) plaintiff’s motion for leave

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to lodge evidence (Doc. 18).

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Plaintiff seeks the appointment of counsel. 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. First, plaintiff has no chance of success on his claim of sexual harassment that

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involved no physical contact. See Austin v. Terhune, 367 F.3d 1167 (9th Cir. 2004); Schwenk v.

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Hartford, 204 F.3d 1187 (9th Cir. 2000); Keenan v. Hall, 83 F.3d 1083 (9th Cir. 1996). Second,

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the legal issue presented is not complex. Third, a review of the docket and plaintiff’s filings

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reflects that he has been able to sufficiently articulate his claim on his own.

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Plaintiff seeks an extension of time to serve defendant. A review of the docket

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reflects that defendant has been served and has filed a motion to dismiss in response to plaintiff’s

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complaint. Plaintiff’s motion will, therefore, be denied as unnecessary.

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Plaintiff seeks leave to amend. The Federal Rules of Civil Procedure provide that

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a party may amend his or her pleading once as a matter of course within 21 days of serving the

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pleading or, if the pleading is one to which a responsive pleading is required, within 21 days after

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service of the responsive pleading, see Fed. R. Civ. P. 15(a)(1)(A), or within 21 days after service

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of a motion under Rule 12(b), (e), or (f) of the rules, whichever time is earlier, see Fed. R. Civ. P.

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15(a)(1)(B). In all other situations, a party’s pleadings may only be amended upon leave of court

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or stipulation of all the parties. See Fed. R. Civ. P. 15(a)(2). Where leave of court to amend is

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required and sought, the court considers the following factors: (1) whether there is a reasonable

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relationship between the original and amended pleadings; (2) whether the grant of leave to amend

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is in the interest of judicial economy and will promote the speedy resolution of the entire

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controversy; (3) whether there was a delay in seeking leave to amend; (4) whether the grant of
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leave to amend would delay a trial on the merits of the original claim; and (5) whether the

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opposing party will be prejudiced by amendment. See Jackson v. Bank of Hawai’i, 902 F.2d

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1385, 1387 (9th Cir. 1990). Leave to amend should be denied where the proposed amendment is

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frivolous. See DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987).

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In this case, because defendant has filed a motion to dismiss under Rule 12(b),

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and because plaintiff did not file his amended complaint as of right within 21 days of the filing of

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defendant’s motion, leave of court is required. The court has reviewed the proposed amended

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complaint and finds that the amendment is frivolous. Specifically, as with the original

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complaint, plaintiff fails to state a claim because he does not allege any physical contact. Leave

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to amend will, therefore, be denied and this action will proceed on the original complaint.

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Plaintiff seeks leave to lodge documentary evidence with the court. At this stage

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of the proceedings, before the court has addressed defendant’s Rule 12(b) motion, plaintiff’s

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request is premature. Plaintiff is advised that evidence may be submitted at a later date should

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the case proceed to discovery and consideration of pre-trial dispositive motions. In the

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meantime, plaintiff’s request will be denied.

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Finally, plaintiff seeks an extension of time to file an opposition to defendant’s
motion to dismiss. Good cause appearing therefor, the request will be granted.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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Plaintiff’s motion for an extension of time to serve defendant (Doc. 10) is

denied as unnecessary;

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2.

Plaintiff’s motions for leave to amend (Docs. 20 and 23) are denied;

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3.

The amended complaint filed on April 27, 2018 (Doc. 24) is stricken;

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4.

Plaintiff’s motion for leave to lodge documentary evidence with the court

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(Doc. 18) is denied as premature;

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5.

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Plaintiff’s motion for the appointment of counsel (Doc. 15) is denied;

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6.

Plaintiff’s motion for an extension of time to file an opposition to

defendant’s motion to dismiss (Doc. 16) is granted; and
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Plaintiff may file an opposition to defendant’s motion to dismiss within 30

days of the date of this order.

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DATED: July 24, 2018
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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