James v. United States Marshals Service Agents et al

Filing 27

ORDER: The Court: (1) Denies Plaintiff's Motion for Appointment of Counsel (ECF No. 24 ); (2) Grants in part and Denies in part Plaintiff's Motion for Relief from Judgment (ECF No. 22 ); (3) Directs the Clerk of the Court to set aside th e Judgment entered on 10/18/2017 (ECF No. 20 ) and vacate the Order dismissing the action without further leave to amend on 10/16/2017 (ECF No. 19 ); (4) Grants Plaintiff sixty (60) days to file a First Amended Complaint which cures all the defici encies of pleading identified in the Court's 08/08/2017 Order. If Plaintiff files a First Amended Complaint that still fails to state a claim, his case may be dismissed without further leave to amend. Signed by Judge William Q. Hayes on 11/20/2017. (All non-registered users served via U.S. Mail Service)(ajs)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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KYLE JAMES,
CDCR #BB-1457,

Case No. 3:17-cv-0414-WQH-BLM

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vs.

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ORDER

Plaintiff,

UNITED STATES MARSHALS
SERVICE AGENTS, K. LANEY;
BROWN; JOHN BUCKLEY; JOHN
DOES; UNITED STATES OF
AMERICA. UNITED STATES
MARSHALS SERVICE ,
Defendants.

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Kyle James (“Plaintiff”), proceeding pro se, and currently incarcerated at Corcoran

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State Prison located in Corcoran, California, initially filed this civil rights action pursuant

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to 42 U.S.C. § 1983 on February 24, 2017. (ECF No. 1.)

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I.

Procedural Background

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On August 08, 2017, the Court dismissed his Complaint sua sponte for failing to

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state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915A(b)(1) and

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denied his Motion to Proceed In Forma Pauperis as moot.

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granted Plaintiff 45 days in which to file an Amended Complaint that cured these pleading

(ECF No. 18). The Court

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deficiencies. (Id. at 7-8, see Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc)

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(noting that leave to amend should be granted when complaint is dismissed sua sponte

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under § 1915 “if it appears at all possible that the plaintiff can correct the defect.”).)

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The record reflects that Plaintiff did not file an Amended Complaint or a motion for

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an extension of time in which to file an Amended Complaint within this time period. See

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Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004) (“The failure of the plaintiff

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eventually to respond to the court’s ultimatum–either by amending the complaint or by

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indicating to the court that [he] will not do so–is properly met with the sanction of a Rule

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41(b) dismissal.”). On October 16, 2017, the Court issued an Order dismissing the entire

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action for the reasons set forth in the August 8, 2017 Order and for failure to prosecute

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pursuant to FED. R. CIV. P. 41(b). (ECF No. 19 at 2.) The matter was closed and judgment

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was entered. (ECF No. 20.)

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Plaintiff has now filed a document titled “Informal Notice to Judge William Hayes

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and Request for Judicial Assistance” which the Court liberally construes as a motion for

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reconsideration of the October 16, 2017 Order. (ECF No. 22.) In addition, Plaintiff has

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filed a Motion to Appoint Counsel. (ECF No. 24.)

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II.

Motion for Reconsideration

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Plaintiff asserts that he is “not demanding punitive or nominal damages (or any

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damages at all) but instead is seeking a “declaration of truth and an apology written from

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the United States Marshals Service.” (ECF No. 22 at 2.) He further contends that “some

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venue of writ or hearing or counsel must surely exist to address this type of issue.” (Id.)

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Plaintiff also states “[i]f the Court will grant Plaintiff an extension of time he will surely

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continue his research and hard work searching for the answers to the unknown legal issues

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in stating a claim.” (Id. at 1.)

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A motion requesting reconsideration of a matter previously decided may be

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construed as a motion to alter an order pursuant to Rule 60(b). See In re Arrowhead Estates

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Dev. Co., 42 F.3d 1306, 1311 (9th Cir. 1994). Rule 60(b) provides for reconsideration

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where one or more of the following is shown: (1) mistake, inadvertence, surprise or
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excusable neglect; (2) newly discovered evidence which by due diligence could not have

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been discovered before the court's decision; (3) fraud by the adverse party; (4) the judgment

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is void; (5) the judgment has been satisfied; (6) any other reason justifying relief. FED. R.

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CIV. P. 60(b); School Dist. 1J v. ACandS Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

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The Court concludes that Plaintiff’s motion contains grounds justifying relief under

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Rule 60(b). The Court will set aside the judgment entered on October 18, 2017 and vacate

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the Order dismissing the action without further leave to amend. The Court will permit

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Plaintiff leave to file a First Amended Complaint. However, the Court DENIES Plaintiff’s

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request that this Court “treat this complaint as one judicially noticed as a different venue

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than Bivens or [Federal Torts Claim Act].” (ECF No. 22 at 2.) It appears that Plaintiff is

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seeking legal advice from this Court by asking the Court to determine which legal theory

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Plaintiff should use to proceed in this matter. The Court cannot provide Plaintiff with legal

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advice.

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III.

Motion for Appointment of Counsel

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Plaintiff requests “temporary assistance of appointed counsel just for the purpose of

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stating a claim.” (ECF No. 24 at 1.) Plaintiff acknowledges that he has filed “multiple §

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1983 cases” that are “with merit and supported by the evidence.” (Id. at 2.) All complaints

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submitted by any pro se litigant, no matter how “inartfully pleaded” are held to “less

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stringent standards that those drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94

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(2007). There is no constitutional right to counsel in a civil case and nothing in Plaintiff’s

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latest filings suggest the Court should exercise its limited discretion to request than an

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attorney represent him pro bono pursuant to 28 U.S.C. § 1915(e)(1). See Agyeman v. Corr.

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Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004).

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In proceedings in forma pauperis, the district court “may request an attorney to

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represent any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1). Only “exceptional

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circumstances” support such a discretionary appointment. Terrell v. Brewer, 935 F.2d

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1015, 1017 (9th Cir. 1991); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).

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Exceptional circumstances exist where there is cumulative showing of both a likelihood of
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success on the merits and a demonstrated inability of the pro se litigant to articulate his

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claims in light of their legal complexity. Palmer, 560 F.3d at 970.

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To date, Plaintiff has filed six § 1983 complaints in this Court. All of these matters,

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including this case, contain factual allegations, legal arguments and exhibits in support.

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These pleadings demonstrate that while Plaintiff may not be formally trained in law, he has

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nevertheless shown he is fully capable of legibly articulating the facts and circumstances

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relevant to his claims, which are not legally “complex.” Agyeman, 390 F.3d at 1103.

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Plaintiff’s original Complaint was dismissed for failure to state a claim and Plaintiff has

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not yet filed any amended Complaint. Accordingly, Plaintiff has not shown he is likely to

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succeed on the merits at this stage in the proceedings. Id.; see also Cano v. Taylor, 1218

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(9th Cir. 2014).
Therefore, Plaintiff’s Motion for Appointment of Counsel (ECF No. 24) must be

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DENIED.

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II.

Conclusion and Order

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Accordingly, the Court:

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(1)

DENIES Plaintiff’s Motion for Appointment of Counsel (ECF No. 24);

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(2)

GRANTS IN PART AND DENIES IN PART Plaintiff’s Motion for Relief

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from Judgment;

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(3)

DIRECTS the Clerk of Court to set aside the Judgment entered on October

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18, 2017 (ECF No. 20) and vacate the Order dismissing the action without further leave to

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amend on October 16, 2017 (ECF No. 19);

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(4)

GRANTS Plaintiff sixty (60) days to file a First Amended Complaint which

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cures all the deficiencies of pleading identified in the Court’s August 8, 2017 Order.

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Plaintiff is cautioned, however, that should he choose to file a First Amended Complaint,

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it must be complete by itself, comply with Federal Rule of Civil Procedure 8(a), and that

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any claim not re-alleged will be considered waived. See S.D. CAL. CIVLR 15.1; Hal Roach

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Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n

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amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928
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(9th Cir. 2012) (noting that claims dismissed with leave to amend which are not re-alleged

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in an amended pleading may be “considered waived if not repled.”).

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If Plaintiff files a First Amended Complaint that still fails to state a claim, his case

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may be dismissed without further leave to amend. See Lira v. Herrera, 427 F.3d 1164,

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1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity to fix his

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complaint, a district court may convert the dismissal of the complaint into dismissal of the

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entire action.”).

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IT IS SO ORDERED.
Dated: November 20, 2017

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