Larson v. Paramo et al

Filing 106

ORDER: (1) Denying 105 Motion for Appointment of Counsel without Prejudice; and (2) Granting 103 Motion for Extension of Time to File Third Amended Complaint. Plaintiff is granted sixty (60) days leave to file a TAC from the date this Order is fi led. Plaintiff's TAC must cure all the problems with his previous pleadings identified in the Court's 9/13/2017 Order. No further extensions of time will be granted. Signed by Judge Barry Ted Moskowitz on 12/4/2017. (All non-registered users served via U.S. Mail Service)(mxn)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JON WARREN LARSON, Case No.: 3:15-cv-00308-BTM-BGS Plaintiff, 12 13 14 ORDER: v. WARDEN D. PARAMO, ET AL., (1) DENYING MOTION FOR APPOINTMENT OF COUNSEL; and Defendant. 15 (2) GRANTING EXTENSION OF TIME TO FILE THIRD AMENDED COMPLAINT 16 17 18 Currently before the Court is Plaintiff’s third motion for appointment of counsel 19 20 and his second motion for extension of time to file his Third Amended Complaint 21 (“TAC”). (ECF Nos. 103, 105.) 22 I. 23 Motion for Appointment of Counsel Plaintiff requests that the Court appoint him counsel in this matter. (ECF No. 105.) 24 Plaintiff claims he is unable to “afford counsel,” the issues in this matter are “complex,” 25 and he has no access to the prison’s law library. (Id. at 1.) 26 However, there is no constitutional right to counsel in a civil case. Lassiter v. 27 Dept. of Social Services, 452 U.S. 18, 25 (1981). While under 28 U.S.C. § 1915(e)(1), 28 district courts have some limited discretion to “request” that an attorney represent an 1 3:15-cv-00308-BTM-BGS 1 indigent civil litigant, Agyeman v. Corr. Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2 2004), this discretion is rarely exercised and only under “exceptional circumstances.” Id.; 3 see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A finding of exceptional 4 circumstances requires “an evaluation of the likelihood of the plaintiff’s success on the 5 merits and an evaluation of the plaintiff’s ability to articulate his claims ‘in light of the 6 complexity of the legal issues involved.’” Agyeman, 390 F.3d at 1103, quoting Wilborn 7 v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). Applying these factors to Plaintiff’s case, the Court DENIES his Request to 8 9 Appoint Counsel because a liberal construction of his pleadings shows he is capable of 10 articulating the factual basis for his claims. All documents filed by pro se litigants are 11 construed liberally, and “a pro se complaint, however inartfully pleaded, must be held to 12 less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 13 551 U.S. 89, 94 (2007). Moreover, FED. R. CIV. P. 8(e) requires that “[p]leadings . . . be 14 construed so as to do justice.” 15 The pleadings filed by Plaintiff to date demonstrate that while Plaintiff may not be 16 trained in law, he is capable of legibly articulating the facts and circumstances relevant to 17 his claims, which are typical, straightforward, and not legally “complex.” Agyeman, 390 18 F.3d at 1103. Therefore, neither the interests of justice nor any exceptional 19 circumstances warrant the appointment of counsel in this case at this time. LaMere v. 20 Risley, 827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017. 21 II. Motion for Extension of Time On October 18, 2017, the Court had previously granted Plaintiff’s request for an 22 23 extension of time to file his TAC and permitted him leave to file his TAC by December 24 1, 2017. (ECF No. 101.) Before that time had passed, Plaintiff filed this second request 25 for an extension of time. In this current request, Plaintiff seeks an additional one 26 hundred twenty (120) days to file his TAC. (ECF No. 103 at 1.) Plaintiff also claims he 27 has been denied access to the prison law library. (Id.) 28 /// 2 3:15-cv-00308-BTM-BGS 1 Plaintiff does not need access to the prison law library to respond to the Court’s 2 previous Orders. Plaintiff must overcome the problems with his pleadings by alleging 3 specific and relevant factual allegations to support each claim he is making in this action. 4 III. Conclusion and Order 5 (1) 6 prejudice. 7 (2) Plaintiff’s Motion to Appoint Counsel (ECF No. 105) is DENIED without Plaintiff’s Motion for Extension of Time (ECF No. 103) is GRANTED. The 8 Court will grant Plaintiff one final extension to file his TAC in this matter. Plaintiff is 9 granted sixty (60) days leave to file a TAC from the date this Order is filed. Plaintiff’s 10 TAC must cure all the problems with his previous pleadings identified in the Court’s 11 September 13, 2017 Order. 12 The Court will perform the required sua sponte screening pursuant to 28 U.S.C. 13 § 1915(e)(2). If Plaintiff fails to file an amended pleading within sixty (60) days, this 14 entire action will be dismissed for the reasons set forth in the Court’s September 13, 2017 15 Order and for failing to comply with a Court Order. 16 No further extensions of time will be granted. 17 IT IS SO ORDERED. 18 19 20 Dated: December 4, 2017 Hon. Barry Ted. Moskowitz, Chief Judge United States District Court 21 22 23 24 25 26 27 28 3 3:15-cv-00308-BTM-BGS

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?