Chennault v. Morris et al

Filing 60

ORDER: (1) Denying 55 57 Motions for Appointment of Counsel; and (2) Granting in part and Denying in part 59 Motion to Amend Complaint. The prayer for injunctive relief, compensatory and punitive damages found in Plaintiff's Complaint (ECF No. 1 ) is stricken and replaced with the new prayer set forth in Plaintiff's Motion to Amend (ECF No. 59 ). The Court strikes Plaintiff's prayer for relief to the extent that he requests attorneys fees. Signed by Judge Barry Ted Moskowitz on 10/14/2014. (All non-registered users served via U.S. Mail Service)(rlu)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

8
9
10
11
12

STEVE W. CHENNAULT,
CDCR #D-93021,

Civil
13cv0854 BTM (KSC)
No.
ORDER:

Plaintiff,

13
14

(1) DENYING MOTIONS FOR
APPOINTMENT OF COUNSEL;
AND

vs.

15
16

(2) GRANTING IN PART AND
DENYING IN PLAINT
PLAINTIFF’S MOTION TO
AMEND COMPLAINT

MORRIS, et al.,

17
18

(ECF Nos. 55, 57, 59)

Defendants.

19
20
21
22

I.

Procedural History

23

Plaintiff, an inmate currently housed at the California Medical Facility, is

24

proceeding pro se in this action filed pursuant to 42 U.S.C. § 1983. Following various

25

motions, the only remaining claims are against Defendant Morris.

26

On June 9, 2014, the Court denied Plaintiff’s motion for appointment of counsel.

27

(ECF No. 39.) Plaintiff later filed a motion for reconsideration of the Court’s ruling on

28

this motion which was also denied on September 16, 2014. (ECF No. 53). Just two
1

13cv0854 BTM (KSC)

1

weeks later, Plaintiff filed two more motions to appoint counsel, a declaration of

2

indigency and a motion to amend the Complaint. (ECF Nos. 55, 57, 59.)

3

II.

Motions to Appoint Counsel

4

In these motions, Plaintiff claims that he is indigent and “appointed counsel would

5

know how to brief petitioner’s issues to the court.” (Pl.’s Mot., ECF No. 55, at 2.) First,

6

the Court has already found that Plaintiff is indigent when the Court granted Plaintiff in

7

forma pauperis (“IFP”) status. (ECF No. 3.)

8

Second, as the Court has informed Plaintiff previously, the Constitution provides

9

no right to appointment of counsel in a civil case unless an indigent litigant may lose his

10

physical liberty if he loses the litigation. Lassiter v. Dept. of Social Services, 452 U.S.

11

18, 25 (1981). Under 28 U.S.C. § 1915(e)(1), district courts are granted discretion to

12

appoint counsel for indigent persons. This discretion may be exercised only under

13

“exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).

14

“A finding of exceptional circumstances requires an evaluation of both the ‘likelihood

15

of success on the merits and the ability of the plaintiff to articulate his claims pro se in

16

light of the complexity of the legal issues involved.’ Neither of these issues is dispositive

17

and both must be viewed together before reaching a decision.” Id. (quoting Wilborn v.

18

Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).

19

Here, this matter involves a limited number of claims against one Defendant.

20

Plaintiff was able to adequately state a claim that permitted the Court to order the action

21

to proceed against this Defendant. If Plaintiff should ultimately not prevail in this civil

22

action, there is no foreseeable risk at this time that he would lose his physical liberty.

23

Thus, the Court finds there are no “exceptional circumstances” in this matter that would

24

require the Court to appoint counsel at this stage of the proceedings.

25

Therefore, the Court denies Plaintiff’s motions to appoint counsel and informs

26

Plaintiff that the Court will entertain renewed motions only upon a significant change in

27

the posture of this case.

28

///
2

13cv0854 BTM (KSC)

1

III.

Motion to Amend

2

Plaintiff has also filed a motion seeking to amend the amount of compensatory and

3

punitive damages he is seeking, to amend his request for injunctive relief and add an

4

amount for attorney fees. The Court will grant Plaintiff’s request to change the amount

5

of monetary damages and to amend his request for injunctive relief but denies his request

6

for attorney fees. Plaintiff is representing himself and is not entitled to attorney fees.

7

Should Plaintiff retain counsel at some future point, the Court will reconsider this

8

decision.

9

IV.

Conclusion and Order

10

Based on the foregoing, the Court hereby:

11

(1)

12
13

DENIES, without prejudice, Plaintiff’s Motions to Appoint Counsel (ECF

Nos. 55, 57); and
(2)

GRANTS, in part, and DENIES, in part, Plaintiff’s Motion to Amend

14

Complaint. The prayer for injunctive relief, compensatory and punitive damages found

15

in Plaintiff’s Complaint (ECF No. 1) is stricken and replaced with the new prayer set

16

forth in Plaintiff’s Motion to Amend (ECF No. 59). The Court strikes Plaintiff’s prayer

17

for relief to the extent that he requests attorneys fees.

18
19

IT IS SO ORDERED.

20

DATED: October 14, 2014

21
22

BARRY TED MOSKOWITZ, Chief Judge

23

United States District Court

24
25
26
27
28
3

13cv0854 BTM (KSC)