(PC) Kendrid v. Scott ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FORREST KENDRID, No. 2:22-cv-02300-CKD P 12 Plaintiff, 13 v. ORDER 14 R. SCOTT, et al., 15 Defendants. 16 17 Plaintiff is a civil detainee proceeding pro se in an action brought under 42 U.S.C. § 1983. 18 Currently pending before the court are plaintiff’s motion for the appointment of counsel and a 19 motion to amend his complaint. The court will address each motion in turn. 20 I. Motion for Counsel 21 Plaintiff requests that the court appoint counsel. District courts lack authority to require 22 counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. 23 Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney 24 to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 25 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 26 When determining whether “exceptional circumstances” exist, the court must consider plaintiff’s 27 likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro 28 se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 1 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The 2 burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances 3 common to most prisoners, such as lack of legal education and limited law library access, do not 4 establish exceptional circumstances that warrant a request for voluntary assistance of counsel. 5 Having considered the factors under Palmer, the court finds that plaintiff has failed to 6 meet his burden of demonstrating exceptional circumstances warranting the appointment of 7 counsel at this time. Despite plaintiff’s physical and mental disabilities, his pleadings are 8 coherent and logical. 9 II. Motion to Amend 10 On May 23, 2023, the court screened plaintiff’s complaint and ordered that this case 11 proceed against defendants R. Scott, S. Scott, Lautenslager, and John Doe Psychiatric Technician 12 based on Eighth Amendment deliberate indifference claims. ECF No. 6. In the same order, 13 plaintiff was advised that service could not be initiated against the John Doe Psychiatric 14 Technician until “plaintiff has identified his or her real name and amended the complaint to 15 substitute this defendant’s actual name.” ECF No. 6 at 1, n. 1. Plaintiff has filed a one page 16 notice identifying the name of the John Doe Psychiatric Technician described in the complaint. 17 ECF No. 12. The court liberally construes plaintiff’s notice as a motion to amend his complaint 18 to identify the John Doe defendant in this case. However, plaintiff’s motion was not 19 accompanied by a proposed amended complaint that substitutes the actual name of the John Doe 20 Psychiatric Technician. As a result, the court denies plaintiff’s motion to amend without 21 prejudice to refiling along with a proposed first amended complaint within 30 days from the date 22 of this order. 23 Accordingly, IT IS HEREBY ORDERED that: 24 1. Plaintiff’s motion for the appointment of counsel (ECF No. 16) is denied without 25 prejudice. 26 2. Plaintiff’s notice docketed on August 3, 2023 is construed as a motion to amend the 27 complaint. So construed, the motion (ECF No. 12) is denied without prejudice to refiling with a 28 proposed first amended complaint identifying all defendants by their actual names within 30 days 1 | from the date of this order. 2 || Dated: October 17, 2023 Card ft 4 by — 3 CAROLYNK.DELANEY 4 4 UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 12/kend2300.3 1.new+m2amend 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28