Urioste v. Corizon and Centurion Health Care Providers et al

Filing 60

ORDER by Magistrate Judge Kevin R. Sweazea granting 38 , 52 Motions to Amend; denying 49 Motion to Appoint Counsel; denying as moot 50 , 56 Motions to Extend Time; granting 57 Motion to Stay; and granting 58 Motion to file Reply. Consult order for details. (cbf)

Case 1:16-cv-00755-JCH-KRS Document 60 Filed 07/08/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JOSHUA URIOSTE,
Plaintiff,
No. 1:16-cv-00755-JCH-KRS
v.
GERMAN FRANKO, et al.,
Defendants.
ORDER ON PENDING MOTIONS
THIS MATTER comes before the Court on several motions from the parties: two
motions amend the complaint (Docs. 38 & 52); two motions to extend time (Docs. 50 & 56); a
motion to appoint counsel (Doc 49); a motion to stay (Doc. 57); and a motion to supplement
(Doc. 58). In his first motion to amend, Plaintiff explains he erroneously named Oscar Treviso
as a Defendant where he meant to name Gary Maciel. As for the second motion, Plaintiff would
like to add language to his complaint clarifying that he is suing all defendants in their individual
and official capacities. Defendants do not oppose the motions to amend. Because of Federal
Rule of Civil Procedure 15’s liberal policy favoring amendment and Defendants’ failure to
object, the Court grants Plaintiff’s two requests. See Fed. R. Civ. P. 15(a).
In the motions to extend, Plaintiff seeks additional time to respond to Defendants’
Martinez report. Plaintiff has now filed his response, and his two motions for an extension are
moot. Plaintiff also moves for appointment of an attorney. But federal courts generally lack the
authority to appoint counsel to represent indigent prisoners in most civil cases. See Mallard v.
United States Dist. Court, 490 U.S. 296, 310 (1989). The Court may pursuant to 28 U.S.C. §
1915(e)(1) request the voluntary assistance of counsel in exceptional circumstances. The
prisoner, however, must show that the merits of his claims, the nature of the factual issues raised

Case 1:16-cv-00755-JCH-KRS Document 60 Filed 07/08/20 Page 2 of 2

in the claims, his ability to present his claims, and the complexity of the legal issues raised by the
claims are such that the prisoner cannot present his case. See Rucks v. Boergermann, 57 F.3d
978, 979 (10th Cir. 1995). Other than point to the fact of incarceration and insist his case is
complex, Plaintiff does not demonstrate why counsel is justified this case.
Having reviewed Plaintiff’s response to their Martinez report, Defendants ask the Court
for permission to file a reply. To date, Plaintiff has not opposed Defendants’ request and Plaintiff
raises numerous issues in his filings to warrant a reply. Further, judicial economy favors staying
discovery until Plaintiff files his amended complaint and the record is fully developed by way of
a reply.
IT IS, THEREFORE, ORDERED that Plaintiff’s motion to amend complaint (Docs. 38
& 52) are GRANTED. Plaintiff shall file, on or before August 7, 2020, a second amended
complaint on that omits Defendant Treviso, adds Defendant Maciel, and excludes the claims and
parties the Court dismissed in its January 18, 2019 Memorandum Opinion and Order. (Doc. 22).
IT IS FURTHER ORDERED that Plaintiff’s motions to extend (Docs. 50 & 56) are
DENIED as moot.
IT IS FURTHER ORDERED that Plaintiff’s motion to appoint counsel (Doc. 38) is
DENIED.
IT IS FURTHER ORDER that Defendants’ motions to stay and supplement (Docs. 57
& 58) are GRANTED. Defendants shall file their reply in support of the Martinez report on or
before July 21, 2020.

__________________________________
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE