Dobson 287619 v. Ryan ( 2020 )

1 WO MDR 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Michael Dobson, No. CV 19-05874-PHX-JAT (ESW) 10 Plaintiff, 11 v. ORDER 12 Charles Ryan, et al., 13 Defendants. 14 15 I. Procedural History 16 On December 23, 2019, Plaintiff Michael Dobson, who is confined in the Arizona 17 State Prison Complex-Eyman in Florence, Arizona, filed a pro se civil rights Complaint 18 pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. In a 19 January 10, 2020 Order, the Court denied the deficient Application to Proceed and gave 20 Plaintiff thirty days to either pay the administrative and filing fees or file a complete 21 Application to Proceed In Forma Pauperis. 22 On January 15, 2020, Plaintiff filed a second Application to Proceed In Forma 23 Pauperis. On January 22, 2020, Plaintiff filed a collection of exhibits in a document titled 24 “RE: Paperwork Judge Requested for Brian D. Karth.”1 On January 31, 2020, Plaintiff 25 filed a “Motion for Issu[a]nce of the Subpoena for Medical Records Discovery.” In a 26 February 5, 2020 Order, the Court granted the second Application to Proceed, dismissed 27 28 1 The Court did not request any paperwork from Plaintiff other than information in support of his request to proceed in forma pauperis. 1 the Complaint because Plaintiff had failed to state a claim, denied without prejudice the 2 discovery motion, and gave Plaintiff thirty days to file an amended complaint that cured 3 the deficiencies identified in the Order. 4 On February 10, 2020, Plaintiff filed a First Amended Complaint and a second 5 “Motion for Issu[a]nce of the Subpoena for Medical Records Discovery.” In a February 6 26, 2020 Order, the Court dismissed the First Amended Complaint because Plaintiff had 7 failed to state a claim, denied without prejudice the discovery motion, and gave Plaintiff 8 thirty days to file a second amended complaint that cured the deficiencies identified in the 9 Order. 10 On March 9, 2020, Plaintiff filed a “Motion for Injunction to Stop Deliberate 11 Interference of Surgery Under 18 USC 2283,” which the Court denied in a March 13, 2020 12 Order. Plaintiff also filed a Notice of Appeal from the February 26, 2020 Order. 13 On March 25, 2020, Plaintiff filed a Motion for Extension to Amend. In an April 14 2, 2020 Order, the Court granted the Motion for Extension to Amend and gave Plaintiff an 15 additional thirty days to file his second amended complaint. On April 6, 2020, Plaintiff 16 filed a Motion to Stay Amendment Pending Appeal, which the Court denied in an April 17 20, 2020 Order. 18 On April 24, 2020, Plaintiff filed a Second Amended Complaint. In a May 1, 2020 19 Order, the Court dismissed the Second Amended Complaint and this action because 20 Plaintiff had failed to state a claim. The Clerk of Court entered Judgment the same day. 21 II. Pending Motion 22 On April 30, 2020, Plaintiff filed a Motion for Leave to Amend 23 Complaint (Doc. 25).2 Plaintiff requests permission to amend his Second Amended 24 Complaint “to name other officials who ignored [his] medical compla[i]nts as these 25 defendants are the cause of injury.” Plaintiff also requests the Court appoint an attorney 26 “for the limited purpose of stating a claim that involves a very sophisticated medical 27 28 2 Because the Clerk of Court did not docket the Motion until May 1, 2020, the Court was unaware of it when the Court issued the May 1, 2020 Order. 1 condition, which expert testimony is required to prove caus[a]tion.” Plaintiff contends he 2 lacks the legal and medical education to “meet the standard of the ‘sophistication’ of his 3 injury.” 4 Plaintiff offers no explanation as to why these “other officials” were not included in 5 his original Complaint, First Amended Complaint, or Second Amended Complaint and he 6 has not lodged a third amended complaint that includes any information about these “other 7 officials” and what they allegedly did or failed to do. Thus, the Court will deny Plaintiff’s 8 request for permission to amend his Second Amended Complaint. 9 The Court will also deny Plaintiff’s request for the appointment of counsel. There 10 is no constitutional right to the appointment of counsel in a civil case. See Ivey v. Bd. of 11 Regents of the Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982). In proceedings in forma 12 pauperis, the court may request an attorney to represent any person unable to afford one. 13 28 U.S.C. § 1915(e)(1). Appointment of counsel under 28 U.S.C. § 1915(e)(1) is required 14 only when “exceptional circumstances” are present. Terrell v. Brewer, 935 F.2d 1015, 15 1017 (9th Cir. 1991). A determination with respect to exceptional circumstances requires 16 an evaluation of the likelihood of success on the merits as well as the ability of Plaintiff to 17 articulate his claims pro se in light of the complexity of the legal issue involved. Id. 18 “Neither of these factors is dispositive and both must be viewed together before reaching 19 a decision.” Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 20 Having considered both elements, it does not appear at this time that exceptional 21 circumstances are present that would require the appointment of counsel in this case. 22 IT IS ORDERED: 23 (1) Plaintiff’s Motion for Leave to Amend Complaint (Doc. 25) is denied. 24 (2) This case must remain closed. 25 . . . . 26 . . . . 27 . . . . 28 . . . . 1 (3) | The docket shall reflect that the Court, pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), has considered whether an appeal of this decision would be taken in good faith and finds Plaintiff may appeal in forma pauperis. 5 Dated this 6th day of May, 2020. 6 7 ' James A. CO ? Senior United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28