(PC) Mundy v. Linke ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 STANLEY W. MUNDY, No. 2:21-cv-0117 CKD P 12 Plaintiff, 13 v. ORDER 14 PAMELA LINKE, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. § 18 1983. On May 5, 2021, the court screened plaintiff’s amended complaint as the court is required 19 to do under 28 U.S.C. § 1915A(a). Plaintiff’s amended complaint was dismissed with leave to 20 file a second amended complaint. Plaintiff has filed two documents titled “Second Amended 21 Complaint” which are essentially the same. Good cause appearing the court will strike the one 22 filed July 19, 2021 and screen the one filed September 10, 2021. 23 When the court screened plaintiff’s amended complaint, plaintiff was warned that his 24 second amended complaint “should not include unnecessary background information, but only 25 facts and allegations which support plaintiff’s claims.” Plaintiff did not comply with the court’s 26 instruction as the second amended complaint is more than double the length of the first amended 27 complaint with page after page of information that is not relevant to any actionable claim. 28 Plaintiff’s second amended complaint violates Rule 8 of the Federal Rules of Civil Procedure as it 1 is not short and plain. Good cause appearing, the second amended complaint will be dismissed. 2 Plaintiff will be granted one final opportunity to submit pleadings upon which he might proceed. 3 If plaintiff elects to submit a third amended complaint, he should refer to the court’s May 4 5, 2021 order for instructions. In addition to the instructions provided in that order, plaintiff is 5 informed as follows: 6 1. Plaintiff’s third amended complaint cannot exceed 20 pages. 7 2. The Eleventh Amendment serves as a jurisdictional bar to suits brought by private 8 parties against a state or state agency unless the state or the agency consents to such suit. See 9 Quern v. Jordan, 440 U.S. 332 (1979). The State of California has not consented to suit under 42 10 U.S.C. § 1983 11 3. Under Rule 20 of the Federal Rules of Civil Procedure, plaintiff cannot bring unrelated 12 claims against different defendants. Simply put, plaintiff cannot join claims against defendant B 13 that have nothing to do with those brought against defendant A. 14 4. The court cannot refer to a prior pleading in order to make plaintiff’s third amended 15 complaint complete. Local Rule 220 requires that an amended complaint be complete in itself 16 without reference to any prior pleading. This is because, as a general rule, an amended complaint 17 supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once 18 plaintiff files a third amended complaint, prior pleadings no longer serve any function in the case. 19 Finally, the court notes that plaintiff has filed a request for the appointment of counsel. 20 District courts lack authority to require counsel to represent indigent prisoners in section 1983 21 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional 22 circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28 23 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 24 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional 25 circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as 26 well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the 27 legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not 28 abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional 1 | circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of 2 || legal education and limited law library access, do not establish exceptional circumstances that 3 || warrant a request for voluntary assistance of counsel. 4 Having considered the factors under Palmer, the court finds that plaintiff has failed to 5 || meet his burden of demonstrating exceptional circumstances warranting the appointment of 6 || counsel at this time. 7 In accordance with the above, IT IS HEREBY ORDERED that: 8 1. Plaintiff's “second amended complaint” filed July 19, 2021 is stricken. 9 2. Plaintiff's second amended complaint filed September 10, 2021 is dismissed. 10 3. Plaintiff is granted thirty days from the date of service of this order to file a third 11 || amended complaint that complies with the requirements this order and the court’s May 5, 2021 12 || order. The third amended complaint must bear the docket number assigned this case and must be 13 || labeled “Third Amended Complaint.” Failure to file a third amended complaint in accordance 14 | with this order will result in a recommendation that this action be dismissed. 15 4. Plaintiffs motion for the appointment of counsel (ECF No. 20) is denied. 16 | Dated: September 16, 2021 / ae □□ / a Ly a "7 CAROLYNK.DELANEY 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28