Jackson v. Russell

Opinion

2 DISTRICT OF NEVADA 2 3 3 TARONTAE D. JACKSON, Case No.: 2:22-cv-01289-JAD-VCF 4 4 Plaintiff, 5 ORDER 5 v. 6 6 PERRY RUSSELL, 7 7 Defendant. 8 8 9 I. DISCUSSION 9 10 On November 1, 2022, the Court issued an order screening Plaintiff’s first 10 11 amended complaint (“FAC”) under 28 U.S.C. § 1915A. (ECF No. 5.) The Court dismissed 11 12 the FAC without prejudice and with leave to file a second amended complaint. (Id.) 12 13 Plaintiff has not filed a second amended complaint. However, Plaintiff has filed a motion 13 14 requesting an application to proceed in forma pauperis, and a motion for appointment of 14 15 counsel. (ECF Nos. 6, 7.) In light of Plaintiff’s continued engagement in this case, the 15 16 Court will grant Plaintiff an extension until February 17, 2023, to file a second amended 16 17 complaint. If Plaintiff fails to file a second amended complaint by February 17, 2023, this 17 18 case will be subject to dismissal without prejudice. The court will now consider Plaintiff’s 18 19 motions. 19 20 A. ECF No. 6 20 21 Plaintiff has filed a motion in which he appears to be requesting an application to 21 22 proceed in forma pauperis for a different case. (ECF No. 6.) To the extent that Plaintiff 22 23 is requesting something for a different case, he must file a motion in that case, not in this 23 24 case. Plaintiff has already filed a complete application to proceed in forma pauperis in 24 25 this case. 25 26 The motion also appears to request a status updated on Plaintiff’s first amended 26 27 complaint. However, the Court has already accepted and screened Plaintiff’s first 27 28 amended complaint. Accordingly, Plaintiff’s motion is denied. However, the Court will 28 2 Plaintiff did not receive the screening order. 2 3 B. ECF No. 7 3 4 Plaintiff has filed a motion for appointment of counsel. (ECF No. 7.) A litigant does 4 5 not have a constitutional right to appointed counsel in 42 U.S.C. § 1983 civil rights claims. 5 6 Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). Pursuant to 28 U.S.C. 6 7 § 1915(e)(1), “[t]he court may request an attorney to represent any person unable to 7 8 afford counsel.” However, the court will appoint counsel for indigent civil litigants only in 8 9 “exceptional circumstances.” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (§ 1983 9 10 action). “When determining whether ‘exceptional circumstances’ exist, a court must 10 11 consider ‘the likelihood of success on the merits as well as the ability of the petitioner to 11 12 articulate his claims pro se in light of the complexity of the legal issues involved.” Id. 12 13 “Neither of these considerations is dispositive and instead must be viewed together.” Id. 13 14 The Court has dismissed Plaintiff’s first amended complaint. Because Plaintiff has 14 15 not yet filed a second amended complaint, the Court cannot properly analyze the 15 16 likelihood of success or the complexity of the legal issues at play in any potential second 16 17 amended complaint. Accordingly, the Court will not consider Plaintiff’s motion for 17 18 appointment of counsel until after Plaintiff files a second amended complaint. 18 19 II. CONCLUSION 19 20 It is therefore ordered that Plaintiff’s motion for an application to proceed in forma 20 21 pauperis, and for a status update, (ECF No. 6) is DENIED. 21 22 It is further ordered that the Court will not consider Plaintiff’s motion for 22 23 appointment of counsel (ECF No. 7) until after Plaintiff files a second amended complaint. 23 24 It is further ordered that the Court extends the deadline for Plaintiff to file any 24 25 second amended complaint to February 17, 2023. Plaintiff is cautioned that this action 25 26 will be subject to dismissal without prejudice if Plaintiff fails to timely comply with this 26 27 order. A dismissal without prejudice allows Plaintiff to refile the case with the Court, under 27 28 a new case number, when Plaintiff can file a signed complaint. 28 1 The Clerk of the Court is directed to send Plaintiff the approved form for filing a § 2| 1983 complaint, instructions for the same, and a copy of his first amended complaint (ECF 3} No. 3.) 4 DATED THIS gay of January 2023. 6 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28