Shotwell v. Brandt et al

Filing 55

ORDER by Judge Claudia Wilken ORDER GRANTING 54 MOTION FOR EXTENSION OF TIME TO FILE AMENDED COMPLAINT; DENYING PLAINTIFFS REQUESTS FOR REFUND OF FILING FEE AND THE APPOINTMENT OF COUNSEL; DIRECTING CLERK OF THE COURT TO SEND CIVIL RIGHTS COMPLAINT FORM TO PLAINTIFF (Attachments: # 1 Certificate/Proof of Service) (ndr, COURT STAFF) (Filed on 1/14/2013)

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3
4

Plaintiff,

5

ORDER GRANTING MOTION FOR
EXTENSION OF TIME TO FILE
AMENDED COMPLAINT; DENYING
PLAINTIFF’S REQUESTS FOR REFUND
OF FILING FEE AND THE
APPOINTMENT OF COUNSEL;
DIRECTING CLERK OF THE COURT TO
SEND CIVIL RIGHTS COMPLAINT
FORM TO PLAINTIFF

v.

6
7

Case No.: C 10-5232 CW (PR)

MANUEL E. SHOTWELL,

S. BRANDT, et al.,

8

Defendants.

9

United States District Court
Northern District of California

10
11

(Docket no. 54)

12
13

Plaintiff, a state prisoner incarcerated at Salinas Valley

14

State Prison (SVSP), filed this pro se civil rights action under

15

42 U.S.C. § 1983, complaining of the violation of his

16

constitutional rights by prison officials at SVSP.

17

before the Court are various motions filed by Plaintiff.

18

A.

Now pending

Motion for Extension of Time

19

Upon initial review of the complaint, the Court found

20

Plaintiff failed to state a claim upon which relief may be

21

granted; the Court dismissed all claims in the complaint without

22

leave to amend.

23

file an amended complaint raising claims concerning events that

24

have transpired since the original complaint was filed.

25

However, the Court granted Plaintiff leave to

Plaintiff moves for an extension of time to file his amended

26

complaint and to be provided with a copy of the court’s civil

27

rights complaint form.

28

GRANTED.

Good cause appearing, the request is

1

B.

2

Motion for Appointment of Counsel
Plaintiff moves for the appointment of counsel to assist him

with the preparation of his amended complaint.

4

constitutional right to counsel in a civil case unless an

5

indigent litigant may lose his physical liberty if he loses the

6

litigation.

7

1997).

8

litigant under 28 U.S.C. § 1915 only in “exceptional

9

circumstances,” the determination of which requires an evaluation

10

United States District Court
Northern District of California

3

of both (1) the likelihood of success on the merits, and (2) the

11

ability of the plaintiff to articulate his claims pro se in light

12

of the complexity of the legal issues involved.

13

Both of these factors must be viewed together before reaching a

14

decision on a request for counsel under § 1915.

15

it is too early in the proceedings for the Court to determine

16

Plaintiff’s likelihood of success on the merits and, with the

17

assistance of other inmates, he has been able to articulate his

18

claims adequately in light of the complexity of the legal issues

19

involved.

20

is DENIED without prejudice.

21

C.

22

There is no

Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir.

The court may ask counsel to represent an indigent

See id. at 1525.

See id.

Here,

Accordingly, the motion for the appointment of counsel

Request for Refund of Filing Fee
At the time Plaintiff filed this action he applied for leave

23

to proceed in forma pauperis (IFP).

24

deficient, the Clerk notified Plaintiff that he must submit a

25

completed application or pay the filing fee.

26

weeks later, on November 30, 2010, Plaintiff sent a letter to the

27

Court stating that his request to have prison officials take

28

$350.00 from his prison trust account to pay the filing fee had

2

Because the application was

Approximately two

1

been approved, and that the fee should be paid within the next

2

thirty days.

3

received from Plaintiff a completed IFP application.

4

15, 2010, the Court granted Plaintiff’s request to proceed IFP.

5

On December 16, 2012, the $350.00 filing fee was paid.

6

Consequently, the Court vacated the order granting Plaintiff IFP

7

status and directed the Court’s Finance Office to refund to

8

Plaintiff any fees that had been paid out of his trust account as

9

a result of the grant of IFP status.

United States District Court
Northern District of California

10

Subsequently, on December 8, 2010, the Court
On December

Plaintiff now moves the Court to restore his IFP status and

11

refund the $350.00 filing fee because he is indigent.

12

request is DENIED.

13

refundable.1

The

The fee in this case has been paid and is not

14

CONCLUSION

15

For the foregoing reasons, the Court orders as follows:

16

1.

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

17

amended complaint and to be provided with the court’s civil

18

rights complaint form is GRANTED.

19

Plaintiff shall file his amended complaint by no later than

20

March 1, 2013.

21

of this action without prejudice.

The failure to do so will result in the dismissal

22

The Clerk of the Court is DIRECTED to send Plaintiff the

23

court’s civil rights complaint form together with this Order.

24

2.

25

DENIED.

Plaintiff’s motion for the appointment of counsel is

26
27
28

1

Even if Plaintiff were proceeding IFP, he would be
responsible for paying the entire $350.00 filing fee, albeit in
monthly installments. See 28 U.S.C. § 1915(b)(1).
3

1

3.

2

This Order terminates Docket no. 54.

3

IT IS SO ORDERED.

4

Plaintiff’s request to refund the filing fee is DENIED.

Dated: 1/14/2013

5

____________________________
CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE

6
7
8
9

United States District Court
Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4