Gibbs v. Carson et al

Filing 21

ORDER DENYING PLAINTIFF'S MOTIONS FOR APPOINTMENT OF COUNSEL AND LEAVE TO FILE AMENDED COMPLAINT. Signed by Judge Thelton E. Henderson on 06/18/2013. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 6/19/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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Plaintiff,

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No. C-13-0860 TEH (PR)

KENNETH GIBBS,

ORDER DENYING PLAINTIFF’S
MOTIONS FOR APPOINTMENT OF
COUNSEL AND LEAVE TO FILE
AMENDED COMPLAINT

v.
CARSON, HUGES, and M. DAVIS, et
al.,

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(Doc. ## 18, 19)

Defendants.

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/

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On April 1, 2013, Plaintiff filed a civil rights complaint

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under 42 U.S.C. § 1983 against thirty-nine named Defendants.
#9.

Doc.

On April 24, 2013, the Court issued an order dismissing the

complaint with leave to amend and denied Plaintiff’s motion to
appoint counsel.

Doc. #14.

On May 8, 2013, Plaintiff filed an

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amended complaint and, on May 16, 2013, the Court issued an Order

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Serving Cognizable Claims.

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Clerk issued summonses as to eleven Defendants.

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Court are two motion filed by Plaintiff on May 24, 2013: (1) a

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motion for appointment of counsel; and (2) a motion for leave to

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file an amended petition.

Doc. ## 15, 16.

Doc. ## 18, 19.

On May 21, 2013, the
Now before the

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In the May 16, 2013 Order serving cognizable claims, the

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Court found nine claims to be cognizable.

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cognizable claims without leave to amend and did not grant Plaintiff

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leave to file a second amended complaint.

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Therefore, Plaintiff’s motion to file an amended complaint is

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DENIED.

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Complaint without filing it.

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It dismissed the non-

See Doc. #16 at 13.

The Clerk shall return to Plaintiff his Second Amended

It is possible that, at the time Plaintiff filed his motion to

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file an amended complaint, he was unaware that the Court had ordered

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service of his cognizable claims and that summonses had been issued

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against eleven Defendants.

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Plaintiff a copy of the docket sheet in this case.

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Therefore, the Clerk shall send to

In the Court’s April 24, 2013 Order it denied Plaintiff’s

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motion for appointment of counsel under 28 U.S.C. § 1915 for lack of

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exceptional circumstances.

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Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (exceptional

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circumstances required for appointment of counsel are likelihood of

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success on the merits and ability of plaintiff to articulate his

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claims pro se in light of the complexity of the legal issues)).

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Now, Plaintiff files a second motion for appointment of counsel

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indicating that his claims are meritorious and his poor mental

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health qualifies as an exceptional circumstance.

Doc. # 14 at 12 (citing Terrel v.

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It is too early in the case to determine whether

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Plaintiff’s claims are meritorious and, from Plaintiff’s filings, it

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appears that he is capable of articulating his claims.

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Plaintiff’s second motion for appointment of counsel is DENIED.

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indicated in the April 24, 2013 Order, the Court will consider

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Therefore,
As

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appointment of counsel on its own motion, and seek volunteer counsel

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to agree to represent Plaintiff pro bono, if it determines at a

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later time in the proceedings that appointment of counsel is

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warranted.

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Accordingly, It IS HEREBY ORDERED THAT:

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1.

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for leave to file an amended complaint are DENIED.

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2.

Doc. ## 18, 19.

The Clerk shall return to Plaintiff the second

amended complaint he filed in conjunction with his motion to file an
amended complaint.

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Plaintiff’s motions for appointment of counsel and

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The Clerk shall send to Plaintiff a copy of the

docket sheet in this case.

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IT IS SO ORDERED.
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DATED

06/18/2013
THELTON E. HENDERSON
United States District Judge

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G:\PRO-SE\TEH\CR.13\Gibbs 13-860-counsel am comp deny.wpd

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