(PC) Harris v. Parks ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TEVIN LEE HARRIS, Case No. 1:19-cv-00429-JDP 12 Plaintiff, ORDER GRANTING MOTION TO AMEND 13 v. ECF No. 11 14 E. PARKS, et al., ORDER DENYING MOTION TO APPOINT COUNSEL 15 Defendants. ECF No. 7 16 17 Plaintiff is a state prisoner proceeding without counsel in this civil rights action brought 18 under 42 U.S.C. § 1983. Before the court are plaintiff’s motion to amend his complaint, ECF No. 19 11, and motion to appoint counsel, ECF No. 7. For the reasons discussed below, I will grant 20 plaintiff’s motion to amend and deny plaintiff’s motion for counsel. 21 I. Motion to Amend Complaint 22 Plaintiff moves the court for leave to amend his complaint. As this is plaintiff’s first 23 motion and I grant leave to amend once as a matter of course, I grant plaintiff’s motion. See Fed. 24 R. Civ. P. 15(a)(1); ECF No. 11. Plaintiff will have thirty days to submit a first amended 25 complaint. 26 The amended complaint will supersede the original complaint, Lacey v. Maricopa County, 27 693 F. 3d 896, 907 n.1 (9th Cir. 2012) (en banc), and the amended complaint must be complete 28 1 on its face without reference to the prior, superseded pleading, see E.D. Cal. Local Rule 220. 2 Plaintiff may not change the nature of this suit by adding new, unrelated claims or new, unrelated 3 defendants in his amended complaint. See Fed. R. Civ. P. 18; George v. Smith, 507 F.3d 605, 607 4 (7th Cir. 2007) (“Unrelated claims against different defendants belong in different suits . . . .”). 5 Once an amended complaint is filed, the original complaint no longer serves any function. 6 Therefore, in an amended complaint, as in an original complaint, plaintiff must assert each claim 7 and allege each defendant’s involvement in sufficient detail. The amended complaint should be 8 titled “First Amended Complaint,” refer to the appropriate case number, and be an original signed 9 under penalty of perjury. 10 II. Motion for Counsel 11 Plaintiff moves for the appointment of counsel. ECF No. 7. Plaintiff does not have a 12 constitutional right to appointed counsel in this action, see Rand v. Rowland, 113 F.3d 1520, 1525 13 (9th Cir. 1997), and the court lacks the authority to require an attorney to represent plaintiff. See 14 Mallard v. U.S. District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). The 15 court may request the voluntary assistance of counsel. See 28 U.S.C. § 1915(e)(1) (“The court 16 may request an attorney to represent any person unable to afford counsel.”); Rand, 113 F.3d at 17 1525. However, without a means to compensate counsel, the court will seek volunteer counsel 18 only in exceptional circumstances. In determining whether such circumstances exist, “the district 19 court must evaluate both the likelihood of success on the merits [and] the ability of the [plaintiff] 20 to articulate his claims pro se in light of the complexity of the legal issues involved.” Rand, 113 21 F.3d at 1525 (quotation marks and citations omitted). 22 The court cannot conclude that exceptional circumstances requiring the appointment of 23 counsel are present here. The allegations in the complaint are not exceptionally complicated. 24 Based on a review of the record, it is not apparent that plaintiff is unable to articulate his claims 25 adequately. Further, at this early stage in the proceedings, plaintiff has not demonstrated that he 26 is likely to succeed on the merits. 27 28 1 The court may revisit this issue at a later stage of the proceedings if the interests of justice 2 | sorequire. If plaintiff later renews his request for counsel, he should provide a detailed 3 | explanation of the circumstances that he believes justify appointment of counsel. 4 II. Conclusion and Order 5 Accordingly, 6 1. plaintiff's motion to amend complaint, ECF No. 11, is granted; 7 2. plaintiff's motion for counsel, ECF No. 7, is denied without prejudice; 8 3. plaintiff shall have thirty days to file a first amended complaint; and 9 4. the clerk is directed to send plaintiff a civil rights complaint form. 10 Wl IT IS SO ORDERED. 12 ( Waban Dated: _ October 15, 2019 13 UNIT#D STATES MAGISTRATE JUDGE 14 15 16 | No. 204 17 18 19 20 21 22 23 24 25 26 27 28