Turner v. County of San Diego ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID BRYAN TURNER, Jr., Case No.: 3:20-cv-0652-AJB-RBB Booking No. 19734785, 12 ORDER Plaintiff, 13 vs. 1) DENYING MOTION TO APPOINT 14 COUNSEL 15 COUNTY OF SAN DIEGO; WILLIAM AND 16 D. GORE; SHERIFF DEPUTIES DOES 17 1-3; METROPOLITAN TRANSIT 2) GRANTING EXTENSION OF POLICE DOE 1, TIME TO FILE FIRST AMENDED 18 Defendants. COMPLAINT 19 [ECF No. 11] 20 21 David Bryan Turner, Jr. (“Plaintiff”), incarcerated at the George Bailey Detention 22 Facility1 (“GBDF”) in San Diego, California, has filed a pro se civil rights Complaint 23 24 25 1 According to the San Diego County Sheriff’s Department’s website, Turner was last booked on June 4, 26 2019, has been sentenced, and is serving his prison term in San Diego Superior Court Case No. SCD282052 in local custody. See https://apps.sdsheriff.net/wij/wijDetail.aspx?BookNum=zRQs IHv WI 27 OkylpP4ARqdZiQYVorV1xdJ7ApeWLojNrs%3d (last accessed August 5, 2020). The Court may take judicial notice of public records available on online inmate locators. See United States v. Basher, 629 28 1 pursuant to 42 U.S.C. Section 1983. (See ECF No. 1, Compl.) Plaintiff alleged that his 2 constitutional rights have been violated by unnamed San Diego County Sheriff Deputies 3 while housed at GBDF. (See id. at 3, 4.) In addition, Plaintiff alleged that in October of 4 2018 excessive force was used against him by unnamed San Diego County Sheriff 5 Deputies and unnamed Metropolitan Transit Officers (“MTS”). (Id. at 6.) 6 Plaintiff did not prepay the $400 civil filing fee required by 28 U.S.C. Section 7 1914(a) at the time of filing, and instead filed three Motions to Proceed In Forma 8 Pauperis (“IFP”) pursuant to 28 U.S.C. Section 1915(a). (See ECF Nos. 4, 6, 8.) 9 On June 11, 2020, the Court GRANTED Plaintiff’s Motions to Proceed IFP and 10 DISMISSED his Complaint for failing to state a claim. (ECF No. 9.) Plaintiff was 11 granted leave to file an amended complaint to correct the problems with his pleading 12 identified in the Court’s Order. (Id.) 13 On June 25, 2020, Plaintiff filed a Motion to Appoint Counsel and also requested 14 an extension of time to respond to the Court’s June 11, 2020 Order. 15 II. Motion for Appointment of Counsel 16 Plaintiff requests that the Court appoint him counsel to help him “submit papers” 17 in this matter. See ECF No. 11 at 1. All documents filed pro se are liberally construed, 18 and “a pro se complaint, however inartfully pleaded, must be held to less stringent 19 standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 20 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976) (internal quotations omitted)). 21 But there is no constitutional right to counsel in a civil case; and Plaintiff’s FAC does not 22 demand that the Court exercise its limited discretion to request than an attorney represent 23 him pro bono pursuant to 28 U.S.C. § 1915(e)(1) at this stage of the case. See Lassiter v. 24 Dept. of Social Servs., 452 U.S. 18, 25 (1981); Agyeman v. Corr. Corp. of America, 390 25 F.3d 1101, 1103 (9th Cir. 2004). Only “exceptional circumstances” support such a 26 27 the public); see also Foley v. Martz, No. 3:18-cv-02001-CAB-AGS, 2018 WL 5111998, at *1 (S.D. Cal. 28 1 discretionary appointment. Terrell v. Brewer, 935 F.3d 1015, 1017 (9th Cir. 1991); 2 Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Exceptional circumstances exist 3 where there is cumulative showing of both a likelihood of success on the merits and a 4 demonstrated inability of the pro se litigant to articulate his claims in light of their legal 5 complexity. Id. 6 As currently pleaded, Plaintiff’s Complaint demonstrates that while he may not be 7 formally trained in law, he nevertheless is fully capable of legibly articulating the facts 8 and circumstances relevant to his claims, which are typical and not legally “complex.” 9 Agyeman, 390 F.3d at 1103. Moreover, for the reasons discussed in the Court’s June 11, 10 2020 Order, Plaintiff has yet to show he is likely to succeed on the merits of the claims. 11 Therefore, the Court DENIES Plaintiff’s Motion for Appointment of Counsel (ECF No. 12 11). 13 III. Conclusion and Orders 14 For the reasons explained, the Court: 15 1. DENIES Plaintiff’s Motion to Appoint Counsel (ECF No. 11); 16 2. GRANTS Plaintiff’s Motion for Extension of Time to File First Amended 17 Complaint (ECF No. 11) and GRANTS him sixty (60) days leave from the date of this 18 Order in which to file an Amended Complaint which cures all the deficiencies of 19 pleading noted. Plaintiff’s Amended Complaint must be complete by itself without 20 reference to his original pleading. Defendants not named and any claim not re-alleged in 21 his Amended Complaint will be considered waived. See S.D. Cal. Civ. L.R. 15.1; Hal 22 Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) 23 (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 24 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not 25 re-alleged in an amended pleading may be “considered waived if not repled.”). 26 If Plaintiff fails to file an Amended Complaint within the time provided, the Court 27 will enter a final Order dismissing this civil action based both on Plaintiff’s failure to 28 state a claim upon which relief can be granted pursuant to 28 U.S.C. Section 1 |] 1915(e)(2)(B) and Section 1915A(b), and his failure to prosecute in compliance with a 2 court order requiring amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 3 || 2005) (‘If a plaintiff does not take advantage of the opportunity to fix his complaint, a 4 || district court may convert the dismissal of the complaint into dismissal of the entire 5 || action.’’). 6 IT ISSO ORDERED. 7 8 ||Dated: August 7, 2020 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28