Trost v. Cox et al

Filing 7

ORDER granting # 5 Motion to Extend Time : Amended Complaint due by 6/10/2015. Further ordered # 6 Motion for reconsideration is denied. Signed by Judge Miranda M. Du on 5/21/2015. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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ROY TROST,
Plaintiff,

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Case No. 3:14-cv-00611-MMD-WGC
ORDER

v.
GREG COX, et al.,

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Defendants.

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I.

DISCUSSION

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On April 10, 2015, this Court entered a screening order dismissing Plaintiff’s

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complaint in its entirety, without prejudice, with leave to amend. (Dkt. no. 3 at 10.) The

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Court granted Plaintiff thirty (30) days from the date of that order to file his amended

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complaint. (Id.) The Court also denied Plaintiff’s motion for appointment of counsel

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because it did not find any exceptional circumstances warranting an appointment. (Id.)

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On April 17, 2015, Plaintiff filed a motion to extend time to file his amended

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complaint. (Dkt. no. 5.) Plaintiff asks for an additional thirty (30) days to file his amended

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complaint. (Id. at 1.) The Court grants Plaintiff’s motion for an extension of time. Plaintiff

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shall file his amended complaint on or before June 10, 2015.

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On April 17, 2015, Plaintiff also filed a motion for reconsideration of the denial of

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appointment of counsel. (Dkt. no. 6 at 1.) Plaintiff argues that he has no knowledge of

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the law, lacks an education, and has relied on the assistance of other inmates to file his

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lawsuit. (Id.) Plaintiff has attempted to contact several advocacy groups but has

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received no help. (Id.) Plaintiff is under severe emotional distress and cannot function

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without proper medical treatment for his gender identity disorder. (Id.) If he does not

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receive medical treatment soon, he will die. (Id.)

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A litigant does not have a constitutional right to appointed counsel in 42 U.S.C. §

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1983 civil rights claims. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981).

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Pursuant to 28 U.S.C. § 1915(e)(1), “[t]he court may request an attorney to represent

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

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indigent civil litigants only in “exceptional circumstances.” Palmer v. Valdez, 560 F.3d

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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

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

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of the legal issues involved.” Id.

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The Court acknowledges that another inmate, John Quintero, helped Plaintiff

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draft his original complaint. (See dkt. no. 4 at 19.) However, the Court does not find that

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Plaintiff’s case exhibits exceptional circumstances at this time. The Court must consider

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the likelihood of success on the merits and Plaintiff’s ability to articulate his complaints

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pro se. As discussed in the screening order, the Court dismissed the complaint in its

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entirety, with leave to amend, because Plaintiff’s allegations were too vague and

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conclusory for the Court to determine if Plaintiff could possibly state any claims. (Dkt.

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no. 3 at 5-6.) As such, Plaintiff has not demonstrated that there is a likelihood of

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success on the merits at this time because he has not stated any cognizable claims.

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Plaintiff may file another motion for an appointment for counsel after he submits his

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amended complaint. The Court denies Plaintiff’s motion for reconsideration of the denial

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of appointment of counsel.

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II.

CONCLUSION

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For the foregoing reasons, it is ordered that the motion to extend time to file

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amended complaint (dkt. no. 5) is granted. Plaintiff shall file his amended complaint on

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or before June 10, 2015.

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It is further ordered that the motion for reconsideration (dkt. no. 6) is denied.

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DATED THIS 21st day of April 2015.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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