Prestridge v. Williams ( 2021 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 JAMES PRESTRIDGE, Case No. 2:20-cv-00061-APG-BNW 4 Plaintiff, ORDER 5 v. 6 BRIAN WILLIAMS et al., 7 Defendants. 8 9 I. DISCUSSION 10 Plaintiff has filed a motion for an extension of time (ECF No. 14) and a motion for 11 appointment of counsel and evidentiary hearing (ECF No. 15). 12 Plaintiff moves for an extension of time to file his third amended complaint from 13 November 30, 2021, to January 30, 2022. (ECF No. 14 at 1). Plaintiff states that he needs 14 an extension of time because of the holidays and because the law librarian never gave 15 him a copy of the second amended complaint as ordered by the Court. (Id. at 1-2). 16 Plaintiff also seeks an order directing the High Desert State Prison medical department 17 to provide him copies of all the nurses’ identification badges so he can identify everyone 18 he spoke to about his injuries. (Id. at 4). 19 The Court grants the motion for an extension of time in part. Plaintiff will file a third 20 amended complaint on or before Friday, January 28, 2022. If Plaintiff fails to file a third 21 amended complaint by January 28, 2022, the Court will recommend dismissal of this 22 action for failure to state a claim. (See ECF No. 13 at 11). The Court also directs the law 23 librarian to provide Plaintiff with a complete copy of the second amended complaint. (See 24 id.) 25 The Court denies the motion to have the medical department provide Plaintiff with 26 copies of all the nurses’ identification badges. Based on the motion, Plaintiff knows the 27 first names of several nurses and their physical descriptions which he may use in his third 28 amended complaint. 1 Like many prisoners who file civil-rights claims, Plaintiff asks the Court to find and 2 appoint a free lawyer. (ECF No. 15). Plaintiff asserts that he does not have access to 3 the law library, it takes a while to receive answers to his law library kites, and he needs 4 an attorney to investigate his medical claims. (Id.) 5 A litigant does not have a constitutional right to appointed counsel in 42 U.S.C. § 6 1983 civil-rights claims. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). The 7 statute that governs this type of litigation, 28 U.S.C. § 1915(e)(1), provides that “[t]he court 8 may request an attorney to represent any person unable to afford counsel.” However, 9 the court will appoint counsel for indigent civil litigants only in “exceptional circumstances.” 10 Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (§ 1983 action). “When determining 11 whether ‘exceptional circumstances’ exist, a court must consider ‘the likelihood of 12 success on the merits as well as the ability of the petitioner to articulate his claims pro se 13 in light of the complexity of the legal issues involved.” Id. “Neither of these considerations 14 is dispositive and instead must be viewed together.” Id. 15 The Court does not find exceptional circumstances here. Plaintiff has yet to state 16 any colorable claims and has only identified common circumstances. See Baker v. 17 Macomber, No. 2:15-CV-00248-TLN-AC, 2020 WL 1182495, at *1 (E.D. Cal. Mar. 12, 18 2020) (finding that “[c]ircumstances common to most prisoners, such as lack of legal 19 education and limited law library access, do not establish exceptional circumstances that 20 warrant a request for voluntary assistance of counsel”). The Court denies the motion to 21 appoint counsel without prejudice. 22 II. CONCLUSION 23 IT IS THEREFORE ORDERED that the motion for an extension of time (ECF No. 24 14) is granted in part and denied in part. Plaintiff will file his third amended complaint 25 on or before Friday, January 28, 2022. If Plaintiff fails to file a third amended complaint 26 by that deadline, the Court will recommend dismissal of the action for failure to state a 27 claim. 28 IT IS FURTHER ORDERED that the Clerk of the Court will send Plaintiff a courtesy copy of the second amended complaint (ECF No. 12). The prison law librarian is directed 2| to provide Plaintiff with a complete copy of the second amended complaint." 3 IT IS FURTHER ORDERED that the motion for appointment of counsel and evidentiary hearing (ECF No. 15) is denied without prejudice. 5 6 DATED: December 8, 2021. qe le web 8 BRENDAWEKSLER i its 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 □ 28 1 |f Plaintiff does not receive a complete copy of the second amended complaint from the law librarian, he will notify the Court within 7 days from the date of this order. -3-