Shumate v. Engram

• Court: District Court, N.D. California
• Decided: March 12, 2025
• Docket: 3:24-cv-06901
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BENJAMIN T. SHUMATE, Case No. 24-cv-06901-RMI

8 Plaintiff, ORDER v. 9 Re: Dkt. Nos. 9, 10, 11, 12 10 EDDIE ENGRAM, et al., Defendants. 11

12 13 Plaintiff, a detainee, filed a pro se civil rights complaint under 42 U.S.C. § 1983, and then 14 an amendment. The court dismissed the complaint and amendment with leave to amend and 15 provided Plaintiff an opportunity to file a second amended complaint. Plaintiff filed a second 16 amended complaint (dkt. 8) and then a motion to amend regarding the Defendants (dkt. 9), a 17 motion to supplement the record (dkt. 10), and a motion to appoint counsel (dkt. 11). 18 Plaintiff’s second amended complaint follows some of the instructions set forth by the 19 court in the screening order, but Plaintiff fails to identify many of the specific Defendants and 20 describe how they violated his constitutional rights. Plaintiff’s motion to amend then removes 21 many of the Defendants and seeks to add several unidentified Defendants. The court cannot 22 determine from the filings what individual Defendants are responsible for the alleged 23 constitutional violations. 24 Plaintiff’s second amended complaint is dismissed without prejudice and Plaintiff may 25 refile a second amended complaint that focusses on a few related claims and Plaintiff must 26 identify the specific Defendants and describe how they violated his constitutional rights. It is 27 insufficient to just allege that jail staff violated his rights. Plaintiff must also present all of his 1 Plaintiff also requests the appointment of counsel. There is no constitutional right to 2 counsel in a civil case, Lassiter v. Dep’t of Social Services, 452 U.S. 18, 25 (1981), and although 3 district courts may “request” that counsel represent a litigant who is proceeding in forma pauperis, 4 as plaintiff is here, see 28 U.S.C. § 1915(e)(1), that does not give the courts the power to make 5 “coercive appointments of counsel.” Mallard v. United States Dist. Court, 490 U.S. 296, 310 6 (1989). 7 The Ninth Circuit has held that a district court may ask counsel to represent an indigent 8 litigant only in “exceptional circumstances,” the determination of which requires an evaluation of 9 both (1) the likelihood of success on the merits and (2) the ability of the plaintiff to articulate his 10 claims pro se in light of the complexity of the legal issues involved. Terrell v. Brewer, 935 F.2d 11 1015, 1017 (9th Cir. 1991). Plaintiff has presented his claims adequately and the issues are not 12 complex. The motion is denied. 13 For the foregoing reasons: 14 1. The second amended complaint is dismissed without prejudice and Plaintiff may refile 15 the second amended complaint within twenty-eight (28) days of the date this order is filed. 16 Plaintiff must include in it all the claims he wishes to present. See Ferdik v. Bonzelet, 963 F.2d 17 1258, 1262 (9th Cir. 1992). The second amendment complaint and exhibits may be no longer than 18 25 pages. Plaintiff’s motion (dkt. 10) to supply 400 extra pages is DENIED. Plaintiff may not 19 incorporate material from the prior Complaints by reference. Failure to amend within the 20 designated time will result in dismissal of this case. The motions to amend and appoint counsel 21 (dkts. 9, 11) are DENIED without prejudice. The motion to proceed in forma pauperis (dkt. 12) is 22 DENIED as moot because Plaintiff is already proceeding in forma pauperis. 23 2. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the court 24 informed of any change of address by filing a separate paper with the clerk, headered “Notice of 25 Change of Address,” and must comply with the court’s orders in a timely fashion. Failure to do so 26 may result in dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil 27 Procedure 41(b). 1 IT IS SO ORDERED. 2 Dated: March 12, 2025 3 4 ROBERT M. ILLMAN 5 United States Magistrate Judge 6 7 8 9 10 11 12

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