Dean v. Palmer

Filing 19

ORDER denying as moot 6 Motion/Application for Leave to Proceed in forma pauperis, 7 Motion to Appoint Counsel, 8 Motion for Certificate of Appealability, and 16 Motion to Amend/Correct Complaint; and denying without prejud ice 18 Motion to Appoint Counsel. Plaintiff shall file amended complaint within 30 days. Clerk shall send to plaintiff blank complaint form with instructions (sent 8/21/13). (E-mail notice (NEF) sent to the US Court of Appeals, Ninth Circuit.) Signed by Judge Larry R. Hicks on 8/19/13. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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TRAVIS REMAUL DEAN,
#32082

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Plaintiff,
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vs.
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JACK PALMER,
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Defendant.
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3:12-cv-00658-LRH-WGC
ORDER

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This is a purported prisoner civil rights action filed pursuant to 42 U.S.C. § 1983. On January

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28, 2013, the court dismissed the action without prejudice because plaintiff had failed to file a complaint

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(ECF #4), and judgment was entered (ECF #5). Plaintiff appealed, and the Ninth Circuit Court of

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Appeals vacated the order of this court dismissing the case and remanded with instructions that plaintiff

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be given leave to file an amended complaint (ECF #12). Pursuant to that order, on June 10, 2013, this

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court directed plaintiff to file such amended complaint within 45 days (ECF #15).

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Thereafter, on June 25, 2013, plaintiff filed a motion to amend his complaint (ECF #16), an

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application for leave to proceed in forma pauperis (ECF #17) and a motion for appointment of counsel

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(ECF #18). A decision on the application to proceed in forma pauperis will be temporarily deferred.

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Plaintiff has already been directed to file an amended complaint, thus his motion to file an amended

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complaint is denied as moot.1 Plaintiff shall have an additional thirty (30) days from the date this order

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is filed to file such amended complaint.

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The court notes that in any event, a plaintiff shall attach a proposed amended complaint to his
or her motion for leave to file an amended complaint.

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With respect to the motion for appointment of counsel, a litigant in a civil rights action does not

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have a Sixth Amendment right to appointed counsel. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th

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Cir. 1981). In very limited circumstances, federal courts are empowered to request an attorney to

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represent an indigent civil litigant. The circumstances in which a court will make such a request,

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however, are exceedingly rare, and the court will make the request under only extraordinary

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circumstances. United States v. 30.64 Acres of Land, 795 F.2d 796, 799-800 (9th Cir. 1986); Wilborn

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

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A finding of such exceptional circumstances requires that the court evaluate both the likelihood

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

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complexity of the legal issues involved. Neither factor is dispositive, and both must be viewed together

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in making a finding. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991)(citing Wilborn, supra, 789

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F.2d at 1331). The district court has considerable discretion in making these findings.

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Here, plaintiff has not yet filed a complaint in this action, thus the court cannot evaluate his

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claims and his ability to articulate those claims. Accordingly, plaintiff’s motion for the appointment of

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counsel is denied without prejudice and with leave to renew.

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IT IS THEREFORE ORDERED that plaintiff’s motion to amend complaint (ECF #16) is

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DENIED as moot. Plaintiff shall file his amended complaint within thirty (30) days of the date of this

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order.

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IT IS FURTHER ORDERED that plaintiff’s motion for appointment of counsel (ECF #18) is
DENIED without prejudice.

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IT IS FURTHER ORDERED that the following motions filed by plaintiff: application for leave

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to appeal in forma pauperis (ECF #6); motion for appointment of counsel in and for the instant appeal

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(ECF #7); and motion for certificate of appealability (ECF #8) are all DENIED as moot.

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IT IS FURTHER ORDERED that plaintiff is expressly cautioned that if he does not timely file

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an amended complaint in compliance with this order, this action may be immediately dismissed.

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IT IS FURTHER ORDERED that the Clerk shall send to plaintiff a blank section 1983 civil
rights complaint form with instructions.

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DATED this 19th day of August, 2013.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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