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)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JON WARREN LARSON,

Case No.: 3:15-cv-00308-BTM-BGS
Plaintiff,

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ORDER:

v.
WARDEN D. PARAMO, ET AL.,

(1) DENYING MOTION FOR
APPOINTMENT OF COUNSEL; and

Defendant.

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(2) GRANTING EXTENSION OF
TIME TO FILE THIRD AMENDED
COMPLAINT

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Currently before the Court is Plaintiff’s third motion for appointment of counsel

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and his second motion for extension of time to file his Third Amended Complaint

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(“TAC”). (ECF Nos. 103, 105.)

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I.

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Motion for Appointment of Counsel
Plaintiff requests that the Court appoint him counsel in this matter. (ECF No. 105.)

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Plaintiff claims he is unable to “afford counsel,” the issues in this matter are “complex,”

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and he has no access to the prison’s law library. (Id. at 1.)

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However, there is no constitutional right to counsel in a civil case. Lassiter v.

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Dept. of Social Services, 452 U.S. 18, 25 (1981). While under 28 U.S.C. § 1915(e)(1),

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district courts have some limited discretion to “request” that an attorney represent an
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3:15-cv-00308-BTM-BGS

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indigent civil litigant, Agyeman v. Corr. Corp. of America, 390 F.3d 1101, 1103 (9th Cir.

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2004), this discretion is rarely exercised and only under “exceptional circumstances.” Id.;

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see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A finding of exceptional

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circumstances requires “an evaluation of the likelihood of the plaintiff’s success on the

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merits and an evaluation of the plaintiff’s ability to articulate his claims ‘in light of the

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complexity of the legal issues involved.’” Agyeman, 390 F.3d at 1103, quoting Wilborn

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v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).
Applying these factors to Plaintiff’s case, the Court DENIES his Request to

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Appoint Counsel because a liberal construction of his pleadings shows he is capable of

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articulating the factual basis for his claims. All documents filed by pro se litigants are

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construed liberally, and “a pro se complaint, however inartfully pleaded, must be held to

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less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus,

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551 U.S. 89, 94 (2007). Moreover, FED. R. CIV. P. 8(e) requires that “[p]leadings . . . be

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construed so as to do justice.”

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The pleadings filed by Plaintiff to date demonstrate that while Plaintiff may not be

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trained in law, he is capable of legibly articulating the facts and circumstances relevant to

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his claims, which are typical, straightforward, and not legally “complex.” Agyeman, 390

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F.3d at 1103. Therefore, neither the interests of justice nor any exceptional

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circumstances warrant the appointment of counsel in this case at this time. LaMere v.

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Risley, 827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017.

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II.

Motion for Extension of Time
On October 18, 2017, the Court had previously granted Plaintiff’s request for an

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extension of time to file his TAC and permitted him leave to file his TAC by December

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1, 2017. (ECF No. 101.) Before that time had passed, Plaintiff filed this second request

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for an extension of time. In this current request, Plaintiff seeks an additional one

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hundred twenty (120) days to file his TAC. (ECF No. 103 at 1.) Plaintiff also claims he

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has been denied access to the prison law library. (Id.)

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///
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3:15-cv-00308-BTM-BGS

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Plaintiff does not need access to the prison law library to respond to the Court’s

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previous Orders. Plaintiff must overcome the problems with his pleadings by alleging

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specific and relevant factual allegations to support each claim he is making in this action.

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III.

Conclusion and Order

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(1)

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prejudice.

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(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

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Court will grant Plaintiff one final extension to file his TAC in this matter. Plaintiff is

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granted sixty (60) days leave to file a TAC from the date this Order is filed. Plaintiff’s

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TAC must cure all the problems with his previous pleadings identified in the Court’s

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September 13, 2017 Order.

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The Court will perform the required sua sponte screening pursuant to 28 U.S.C.

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§ 1915(e)(2). If Plaintiff fails to file an amended pleading within sixty (60) days, this

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entire action will be dismissed for the reasons set forth in the Court’s September 13, 2017

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Order and for failing to comply with a Court Order.

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No further extensions of time will be granted.

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IT IS SO ORDERED.

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Dated: December 4, 2017
Hon. Barry Ted. Moskowitz, Chief Judge
United States District Court

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3:15-cv-00308-BTM-BGS