Stephens v. Fredrickson et al

Filing 31

ORDER denying and denying plaintiff's 25 Motion to Appoint Counsel and seeking joinder, and striking plaintiff's 29 Motion to Amend. A COPY OF THIS ORDER HAS BEEN MAILED TO PLAINTIFF TODAY. Signed by Hon. Mary Alice Theiler.(GB)

01
02
03
04
05
06
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

07
08
09 FRED A. STEPHENS,
10
11
12
13

)
)
Plaintiff,
)
)
v.
)
)
SGT. FREDRICKSON, et al.,
)
)
Defendants.
)
____________________________________ )

CASE NO. C12-1067-RAJ-MAT

ORDER RE: REQUEST FOR
APPOINTMENT OF COUNSEL AND
MOTION TO AMEND

14
15

Plaintiff Fred A. Stephens proceeds pro se in this civil rights matter pursuant to 42

16 U.S.C. § 1983. Plaintiff seeks the appointment of counsel and leave to submit a second
17 amended complaint. (Dkts. 25, 28 & 29.) Respondent submitted an objection to the request
18 for appointment of counsel and to the request to amend as set forth in the first motion to amend
19 filed by plaintiff. (Dkt. 26.) The Court has not yet received a response to the second motion
20 filed by plaintiff seeking an amendment (Dkt. 29), but that motion was not correctly noted
21 under the local rules. Now, having considered the pending motions, the Court does hereby
22 find and ORDER as follows:

ORDER
PAGE -1

01

(1)

There is no right to have counsel appointed in cases brought under § 1983 or in a

02 general civil case. Although the Court, under 28 U.S.C. § 1915(e)(1), can request counsel to
03 represent a party proceeding in forma pauperis (IFP), plaintiff is no longer proceeding IFP in
04 this matter and, even if he were, he has not shown exceptional circumstances warranting the
05 appointment of counsel. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (a
06 finding of exceptional circumstances requires an evaluation of both the likelihood of success on
07 the merits and the ability of the individual to articulate his claims pro se in light of the
08 complexity of the legal issues involved). The Court, in particular, notes that plaintiff has not
09 demonstrated an inability to articulate his claims pro se in light of the complexity of the legal
10 issues involved. Id. Accordingly, plaintiff’s request for the appointment of counsel (Dkt. 25)
11 is DENIED.
12

(2)

Plaintiff seeks to amend his complaint to add one or more new defendants and a

13 claim for declaratory and injunctive relief pursuant to 28 U.S.C. § 2201. However, plaintiff
14 failed to submit a proposed second amended complaint.

Any motion to amend not

15 accompanied by a proposed amended complaint is procedurally deficient and will not be
16 considered.

Accordingly, plaintiff’s motions seeking joinder and the filing of a second

17 amended complaint (Dkts. 25 & 29) are hereby STRICKEN from the docket. If plaintiff
18 wishes to pursue amendment of his complaint, he must submit a new motion to amend together
19 with a proposed second amended complaint which sets forth each claim plaintiff wishes to
20 pursue against each named defendant.
21

(3)

Plaintiff is reminded that, pursuant to Local Civil Rule 7(d)(2), all motions filed

22 in a case in which a party is under civil or criminal confinement must be noted in accordance

ORDER
PAGE -2

01 with Rule 7(d)(1) or 7(d)(3), the latter of which requires a noting date no earlier than the third
02 Friday after filing. As such, any motion to amend filed by plaintiff must be noted no earlier
03 than the third Friday after filing.
04

(4)

The Clerk shall direct copies of this Order to the parties and to the Honorable

05 Richard A. Jones.
06

DATED this 16th day of October, 2012.

07
08

A

09

Mary Alice Theiler
United States Magistrate Judge

10
11
12
13
14
15
16
17
18
19
20
21
22

ORDER
PAGE -3