Johnson v. California Department of Corrections et al

Filing 15

ORDER Granting 11 Motion to Amend the Complaint; Denying 14 Motion for Appointment of Counsel. The Clerk of the Court is directed to docket the Plaintiffs First Amended Complaint, attached to his Motion. Signed by Magistrate Judge Mitchell D. Dembin on 10/6/2011. (IFP Package Prepared) (All non-registered users served via U.S. Mail Service)(leh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ANTHONY RASHAD JOHNSON,

CASE NO. 10cv2184-MMA (MDD)
Plaintiff,

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ORDER GRANTING IN PART
AND DENYING IN PART
PLAINTIFF’S MOTION TO
AMEND AND FOR
APPOINTMENT OF COUNSEL

vs.
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CALIFORNIA DEPARTMENT OF
CORRECTIONS; E.J. PIMENTAL,
Correctional Officer; KULODROVIC,
Correctional Sergeant; SANCHEZ,
Correctional Officer,

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[Doc. No. 11]

Defendants.

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On October 19, 2010, Anthony Rashad Johnson (“Plaintiff”), proceeding pro se and in
forma pauperis, filed a civil rights complaint under 42 U.S.C. § 1983. (Doc. No. 1). On
September 29, 2011, Plaintiff filed a Motion to Amend his Complaint and to Request Civil
Counsel. (Doc. No. 11).
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Amendment of Plaintiff’s Complaint

Plaintiff requests that the Court grant him leave to amend his Complaint so that he may add
claims arising under the Fourteenth Amendment. (Doc. No. 11 at 2). Plaintiff also wishes to
assert new claims against the California Department of Corrections, an entity listed as a defendant
in his original complaint, but dismissed from the suit sua sponte in a November 24, 2010 Order.
(Doc. No. 4).

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10cv2184-MMA (MDD)

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No responsive pleading has been filed yet by the Defendants and Plaintiff may amend his

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Complaint as a matter of course. Fed. R. Civ. Proc. 15(a). Plaintiff’s Motion is GRANTED as to

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amendment of his Complaint.

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It is further ORDERED:

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1) The Clerk of the Court is directed to docket the Plaintiff’s First Amended Complaint,

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attached to his Motion as Exhibit One.

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2) The Clerk shall issue a summons as to Plaintiff’s First Amended Complaint upon all

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named Defendants except the California Department of Corrections, which remains terminated

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from this action, and shall forward it to Plaintiff along with a blank U.S. Marshal Form 285 for

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each Defendant. In addition, the Clerk shall provide Plaintiff with a certified copy of this Order

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and a certified copy of his Complaint and the summons so that he may serve Defendants. Upon

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receipt of this “IFP Package,” Plaintiff is directed to complete the Form 285s as completely and

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accurately as possible, and to return them to the United States Marshal according to the

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instructions provided by the Clerk in the letter accompanying his IFP package. Upon receipt, the

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U.S. Marshal shall serve a copy of the Amended Complaint and summons upon Defendants as

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directed by Plaintiff on the USM Form 285s. All costs of service shall be advanced by the United

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States. See 28 U.S.C. § 1915(d); Fed. R. Civ. Proc. 4(c)(3).

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2.

Appointment of Counsel

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There is no right to counsel in cases brought under 42 U.S.C. § 1983. Wilborn v.

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Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Franklin v. Murphy, 745 F.2d 1221, 1236 (9th

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Cir. 1984). Counsel may be appointed only in “exceptional circumstances.” Wilborn, 789 F.2d at

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1331. In order to demonstrate exceptional circumstances, the court must evaluate both plaintiff’s

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likelihood of success on the merits and the plaintiff’s ability to articulate his claims in light of the

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complexity of the legal issues involved. Id. Plaintiff requests counsel because he has had

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difficulty receiving mail from the Court in the past and wishes “to avoid any more

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miscommunications in this civil litigation.” (Doc. No. 11 at 2). Plaintiff’s claim does not show

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his likelihood of success on the merits nor his inability to articulate his claims. Furthermore,

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Plaintiff filed a Change of Address with the Court (Doc. No. 9) which appears to have corrected

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10cv2184-MMA (MDD)

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his difficulty receiving mail. Accordingly, Plaintiff’s Motion is DENIED as it pertains to

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appointment of counsel.

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IT IS SO ORDERED.
DATED: October 6, 2011

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Hon. Mitchell D. Dembin
U.S. Magistrate Judge

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10cv2184-MMA (MDD)