Struggs v. Evans et al

Filing 14

ORDER GRANTING 12 EXTENSTION OF TIME TO FILE AMENDED COMPLAINT; DENYING 13 MOTION FOR RECONSIDERATION. Signed by Judge Maxine M. Chesney on November 24, 2008. (mmcsec, COURT STAFF) (Filed on 11/24/2008) (Additional attachment(s) added on 11/24/2008: # 1 Certificate of Service) (fj, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ) ) ) Plaintiff, ) ) v. ) ) MIKE EVANS, Warden, et al., ) ) Defendants. _______________________________ ) CEDRIC LYNN STRUGGS, No. C 08-1495 MMC (PR) ORDER GRANTING EXTENSION OF TIME TO FILE AMENDED COMPLAINT; DENYING MOTION FOR RECONSIDERATION (Docket Nos. 12 & 13)

United States District Court

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For the Northern District of California

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On March 18, 2008, plaintiff, a California prisoner incarcerated at Salinas Valley State Prison ("SVSP") and proceeding pro se, filed the above-titled civil rights action under 42 U.S.C. § 1983. After reviewing the complaint, the Court, by order dated October 21, 2008, dismissed with prejudice plaintiff's claims of failure to process administrative appeals and letters of complaint, false reports, and stolen property. Additionally, the Court dismissed with leave to amend plaintiff's claims of denial of due process at his disciplinary hearing, retaliation, excessive force, and inadequate medical care. Plaintiff was directed to file an amended complaint within thirty days of the Court's order. On November 12, 2008, plaintiff filed a request for an extension of thirty days in which to file an amended complaint. Good cause appearing, plaintiff's request is hereby GRANTED. Plaintiff shall file his amended complaint within thirty days of the date this order is filed. On November 13, 2008, plaintiff filed a motion for reconsideration with respect to the

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Court's determination, in its order of initial review, that plaintiff's claims that defendants had failed to process plaintiff's administrative appeals and had written false reports about plaintiff were not cognizable and, consequently, were subject to dismissal with prejudice. Specifically, plaintiff states in his motion for reconsideration that his intent was to allege that defendants' actions were retaliatory, in violation of plaintiff's constitutional rights. As plaintiff has been granted leave to file an amended complaint, the motion for reconsideration is hereby DENIED as moot. Specifically, plaintiff may include his retaliation claims in his amended complaint. Plaintiff has filed a request for the Court to provide him with an "appointment of counsel form." No such form exists. Consequently, plaintiff must prepare his own motion for appointment of counsel. Plaintiff is advised, however, that there is no constitutional right to counsel in a civil case such as this. See Lassiter v. Dep't of Social Services, 452 U.S. 18, 25 (1981). Rather, the decision to request counsel to represent an indigent litigant under § 1915 is within "the sound discretion of the trial court and is granted only in exceptional circumstances." Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). A finding of "exceptional circumstances" requires an evaluation of (1) the likelihood of the plaintiff's success on the merits, and (2) the plaintiff's ability to articulate his claims pro se in light of the complexity of the legal issues involved. See Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004). Here, the Court would not be inclined to grant a motion for appointment of counsel at this time as plaintiff has been able to present his claims in an adequate manner and an evaluation of the likelihood of plaintiff's success on the merits would be premature, in light of the fact that plaintiff has not yet filed an amended complaint. This order terminates Docket Nos. 12 and 13. IT IS SO ORDERED. DATED: November 24, 2008 _________________________ MAXINE M. CHESNEY United States District Judge

United States District Court

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For the Northern District of California

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