(PC) Brown v. Shaffer ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KEITH A. BROWN, Case No. 1:18-cv-00470-AWI-JDP 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION AND MOTION 13 v. TO APPOINT COUNSEL 14 JENNIFER SHAFFER, et al., ECF No. 15 15 Defendants. ORDER THAT PLAINTIFF NOTIFY THE COURT WHETHER HE INTENDS TO FILE A 16 SECOND AMENDED COMPLAINT WITHIN THIRTY DAYS OF THIS ORDER 17 18 Plaintiff is a state prisoner proceeding without counsel in this civil rights action brought 19 under 42 U.S.C. § 1983. On May 21, 2020, plaintiff filed a motion for class certification and for 20 appointed counsel. ECF No. 15. Plaintiff submits that his complaint raises issues common to a 21 class, and that the issues are of sufficient complexity to warrant counsel. Id. 22 Because he is proceeding pro se, plaintiff is not entitled to represent a class. See Simon v. 23 Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008) (“It is well established that the privilege to 24 represent oneself pro se . . . is personal to the litigant and does not extend to other parties or 25 entities.”); Welch v. Terhune, 11 F. App’x 747, 747 (9th Cir. 2001) (affirming the decision of a 26 district court that a pro se prisoner “could not prosecute the instant action as a class action”). 27 Plaintiff’s motion for class certification is therefore denied. 28 1 Moreover, plaintiff does not have a constitutional right to appointed counsel in this action, 2 see Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds 3 on reh’g en banc, 154 F.3d 952 (9th Cir. 1998), and the court lacks the authority to require an 4 attorney to represent plaintiff, see Mallard v. U.S. District Court for the Southern District of 5 Iowa, 490 U.S. 296, 298 (1989). This court may request the voluntary assistance of counsel. See 6 28 U.S.C. § 1915(e)(1); Rand, 113 F.3d at 1525. However, without a means to compensate 7 counsel, the court will seek volunteer counsel only in exceptional circumstances. In determining 8 whether such circumstances exist, “the district court must evaluate both the likelihood of success 9 on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 10 complexity of the legal issues involved.” Rand, 113 F.3d at 1525 (internal quotation marks and 11 citations omitted). 12 The court cannot conclude that exceptional circumstances requiring the appointment of 13 counsel are present here. At this stage in the proceedings, plaintiff has not demonstrated a 14 likelihood of success on the merits, and the issues covered in his complaint do not appear 15 unusually complex. Accordingly, plaintiff’s motion for the appointment of counsel, ECF No. 26, 16 is denied without prejudice. The court may revisit this issue at a later stage of the proceedings if 17 the interests of justice so require. 18 SECOND AMENDED COMPLAINT 19 On May 13, 2019, the court screened plaintiff’s first amended complaint and 20 recommended the dismissal of certain claims and defendants. ECF No. 13. On May 13, plaintiff 21 filed objections, focusing in particular on his claims against defendant Brynulfsen. ECF No. 14. 22 While the May 13 recommendation has not been formally adopted by the court, we note 23 that adoption would not prevent plaintiff from filing a second amended complaint. Thus, should 24 plaintiff wish to make out his allegations against defendant Brynulfsen in more detail, he may 25 wish to consider filing a second amended complaint that does so. Filing a second amended 26 complaint would allow plaintiff’s case to continue without further delay. 27 28 wOAoOe 4.4000 VOUT ENN RA MMU tC ee Oy VV 1 Within thirty days from the date of this order, plaintiff is ordered to notify the court 2 | whether he intends to file a second amended complaint. 3 4 IT IS SO ORDERED. ° y 2, —N prssann — Dated: _ July 2, 2020 6 UNI STATES MAGISTRATE JUDGE 7 8 | No. 205. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28