Helfrich v. Marshall et al

Filing 34

ORDER. IT IS ORDERED that the emergency motion for appointmentof counsel 31 is denied.IT IS FURTHER ORDERED that the amended emergency motion for an extension of time 33 is granted in part. Plaintiff shall file his second amended complaint on or before Thursday, 3/31/16.IT IS FURTHER ORDERED that, if Plaintiff fails to timely comply with this order, the Court shall dismiss his case without prejudice.Signed by Magistrate Judge George Foley, Jr on 2/17/16. (Copies have been distributed pursuant to the NEF - PS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Plaintiff,
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v.
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RICHARD MARSHALL et al.,
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Defendants.
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___________________________________ )

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I.

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PETER JASON HELFRICH,

2:15-cv-00393-KJD-GWF
ORDER

DISCUSSION

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On January 19, 2016, this Court entered an order directing Plaintiff to file a second

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amended complaint within 30 days from the date of that order. (ECF No. 30 at 4). The Court

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stated that, if Plaintiff failed to file a second amended complaint, the action would be

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dismissed without prejudice. (Id.). On February 10, 2016, Plaintiff filed an emergency motion

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for appointment of counsel (ECF No. 31) and an amended emergency motion to enlarge time

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to perfect amended complaint (ECF No. 33).

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A.

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Plaintiff has filed a motion for appointment of counsel because prison officials are

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retaliating against him. (ECF No. 31 at 1). A litigant does not have a constitutional right to

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appointed counsel in 42 U.S.C. § 1983 civil rights claims. Storseth v. Spellman, 654 F.2d

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1349, 1353 (9th Cir. 1981). Pursuant to 28 U.S.C. § 1915(e)(1), “[t]he court may request an

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attorney to represent any person unable to afford counsel.” However, the court will appoint

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counsel for indigent civil litigants only in “exceptional circumstances.” Palmer v. Valdez, 560

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F.3d 965, 970 (9th Cir. 2009) (§ 1983 action). “When determining whether ‘exceptional

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circumstances’ exist, a court must consider ‘the likelihood of success on the merits as well as

Appointment of Counsel

the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal

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issues involved.” Id. “Neither of these considerations is dispositive and instead must be

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viewed together.” Id. In the instant case, the Court does not find exceptional circumstances

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that warrant the appointment of counsel. The Court denies the motion for appointment of

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counsel.

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B.

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Plaintiff has filed a motion for an extension of time to file his amended complaint. (ECF

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No. 33). Plaintiff requests an extension of 90 days. (Id. at 1). The Court grants Plaintiff’s

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motion for an extension of time in part. The Court grants Plaintiff until Thursday, March 31,

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2016 to file his second amended complaint.

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II.

Extension of Time

CONCLUSION
For the foregoing reasons, IT IS ORDERED that the emergency motion for appointment

of counsel (ECF No. 31) is denied.

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IT IS FURTHER ORDERED that the amended emergency motion for an extension of

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time (ECF No. 33) is granted in part. Plaintiff shall file his second amended complaint on or

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before Thursday, March 31, 2016.

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IT IS FURTHER ORDERED that, if Plaintiff fails to timely comply with this order, the
Court shall dismiss his case without prejudice.

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17th
DATED: This _____ day of February 2016.

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_________________________________
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United States Magistrate Judge
ed States Magistrate
d
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t at

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