Woods v. Ayers
Filing
30
ORDER GRANTING LEAVE TO FILE SECOND AMENDED COMPLAINT; SCHEDULING BRIEFING ON PENDING MOTIONS. Signed by Judge Jeffrey S. White on 10/23/12. (jjoS, COURT STAFF) (Filed on 10/23/2012)
1
2
3
4
5
6
IN THE UNITED STATES DISTRICT COURT
7
8
FOR THE NORTHERN DISTRICT OF CALIFORNIA
9
10
11
12
13
14
EARNEST C. WOODS, II,
)
)
Plaintiff,
)
)
v.
)
)
)
ROBERT AYERS, et al.,
)
)
Defendants.
__________________________________ )
No. C 11-4730 JSW (PR)
ORDER GRANTING LEAVE TO
FILE SECOND AMENDED
COMPLAINT; SCHEDULING
BRIEFING; ON PENDING
MOTIONS
(Docket Nos. 21, 25)
15
16
17
18
Plaintiff, a California prisoner proceeding pro se, filed this pro se civil rights
action pursuant to 42 U.S.C. § 1983.
Good cause appearing, leave for Plaintiff to file his second amended complaint is
19
GRANTED. See Fed. R. Civ. P. 15(a). Because Plaintiff has been given two
20
opportunities to amend, and prejudice to the defendants in defending this action that
21
would be caused by further delay, leave to amend the complaint further will not be
22
granted. Plaintiff’s claims against Defendants Wong and Chraft for inadequately
23
reviewing his administrative appeals are DISMISSED for failure to state a cognizable
24
claim for relief. Plaintiff’s claims against Defendants Curzon, Coleman, Evans,
25
Engstrom, Chambers, Guzman, and Burkhart are DISMISSED because he has not
26
included them in his Second Amended Complaint as defendants on any of his claims.
27
See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.1992) (amended complaint
28
supersedes prior complaints and defendants not named in amended complaint are no
1
longer defendants); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (same for pro se
2
litigants' amended complaint). Plaintiff’s claims against Defendants Ayers, Cahala,
3
Frates, Puu, Lee, Schwartz, Arnold, Curry, Young, Lemon, Holland and Thomas are,
4
when liberally construed, cognizable.
5
Defendants Ayers, Lee, Puu, Schwartz, Curry and Arnold have been served, and
6
have answered the first amended complaint. Within 14 days, the appearing defendants
7
shall file an amended answer to the second amended complaint.
8
The appearing defendants have also filed a motion to dismiss the case under 28
9
U.S.C. § 1915(g). The motion is deemed to apply to the second amended complaint. If
10
Plaintiff wants to oppose the motion, he must file an opposition on or before November
11
19, 2012. Defendants shall file a reply brief within 14 days of the date any opposition is
12
filed. The motion, if meritorious, would result in the revocation of Plaintiff’s in forma
13
pauperis status and the dismissal of this action as to all defendants if Plaintiff does not
14
pay the filing fee. Consequently, service on the non-appearing Defendants will be
15
ordered when and if the motion to dismiss is denied.
16
Plaintiff’s motion for appointment of counsel (docket number 25) is DENIED.
17
There is no constitutional right to counsel in a civil case. Lassiter v. Dep't of Social
18
Services, 452 U.S. 18, 25 (1981). 28 U.S.C. § 1915 confers on a district court only the
19
power to "request" that counsel represent a litigant who is proceeding in forma pauperis.
20
28 U.S.C. § 1915(e)(1). The Court has only the power to ask pro bono counsel to
21
represent plaintiff, not the power to “appoint” counsel. Here, plaintiff has presented his
22
claims adequately and the issues are not particularly complex.
23
24
25
26
27
28
Defendants’ motion for an extension of time to file a dispositive motion (docket
number 21) is GRANTED.
IT IS SO ORDERED.
DATED: October 23, 2012
JEFFREY S. WHITE
United States District Judge
1
UNITED STATES DISTRICT COURT
2
FOR THE
3
NORTHERN DISTRICT OF CALIFORNIA
4
5
6
EARNEST CASSELL WOODS II,
7
8
9
10
Case Number: CV11-04730 JSW
Plaintiff,
CERTIFICATE OF SERVICE
v.
ROBERT AYERS et al,
Defendant.
/
11
12
13
14
15
I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on October 23, 2012, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office
delivery receptacle located in the Clerk's office.
16
17
18
Earnest C. Woods D 58091
San Quentin Prison
San Quentin, CA 94974
19
20
21
22
23
24
25
26
27
28
Dated: October 23, 2012
Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?