Smith v. Avalos

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARQUELL SMITH, Case No.: 3:20-cv-01534-JAH-KSC Booking No. 20915351, 12 ORDER: Plaintiff, 13 vs. (1) VACATING FEBRUARY 4, 2021 14 JUDGMENT;

15 AVALOS; S. JACKSON; WILLIAM (2) DENYING MOTION TO 16 GORE; FINLEY; SERGEANT APPOINT COUNSEL; AND 17 KIMBERLY; JOHN/JANE DOE; LIEUTENANT CARDENAS; (3) GRANTING MOTION FOR 18 SERGEANT WARD, EXTENSION OF TIME TO FILE 19 Defendants. THIRD AMENDED COMPLAINT

21 22 23 24 I. Procedural History 25 On August 6, 2020, Marquell Smith (“Plaintiff”), a state inmate temporarily housed 26 in the George Bailey Detention Facility (“GBDF”) in San Diego, California and 27 proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983. (See Compl., 28 ECF No. 1). Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) 1 when he filed his Complaint; instead, he filed a Motion to Proceed In Forma Pauperis 2 (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2), along with a Motion to Appoint 3 Counsel (ECF No. 3). 4 On August 19, 2020, the Court GRANTED Plaintiff’s Motion to Proceed IFP, 5 DENIED Plaintiff’s Motion to Appoint Counsel and DISMISSED Plaintiff’s Complaint 6 for failing to state a claim upon which relief could be granted pursuant to 28 U.S.C. 7 § 1915(e)(2) & 28 U.S.C. § 1915A(b). (See Aug. 19, 2020 Order, ECF No. 4.) Plaintiff 8 was granted leave to file an amended complaint to correct the deficiencies of pleading 9 identified in the Court’s Order. (See id.) On October 19, 2020, Plaintiff filed his First 10 Amended Complaint (“FAC”), along with a Motion to Appoint Counsel. (See FAC, ECF 11 No. 5; Pl.’s Mot., ECF No. 7.) 12 Once again, the Court conducted the required sua sponte screening and DISMISSED 13 Plaintiff’s FAC for failing to state a claim upon which relief could be granted pursuant to 14 28 U.S.C. § 1915(e)(2) & 28 U.S.C. § 1915A(b) and DENIED Plaintiff’s Motion to 15 Appoint Counsel. (See Nov. 25, 2020 Order, ECF No. 9.) 16 On December 14, 2020, Plaintiff filed what was purportedly a Second Amended 17 Complaint (“SAC”) but it did not contain any factual allegations. (See ECF No. 10.) 18 Instead, attached to Plaintiff’s purported SAC is a “Motion to Alter Judgment.” (See id.) 19 In addition, Plaintiff has filed a third Motion to Appoint Counsel. (See ECF No. 12.) The 20 Court DENIED Plaintiff’s Motion to Appoint Counsel, DENIED his Motion to Alter 21 Judgment, and DISMISSED his SAC for failing to state a claim pursuant to 28 U.S.C. 22 § 1915(e)(2) & 28 U.S.C. § 1915A(b). (See ECF No. 13.) 23 Plaintiff filed an Appeal to the Ninth Circuit Court of Appeals. (See ECF No. 15.) 24 On March 18, 2022, the Ninth Circuit issued an Order which reversed this Court’s 25 dismissal of the First Amendment access to courts claim against Defendant Avalos and 26 ordered the Court to permit Plaintiff leave to amend his Eighth Amendment medical care 27 claims. (See ECF No. 19.) On March 28, 2022, Plaintiff filed a “Motion Requesting 28 1 Extension of Time for Leave to Amend [Eighth] Amendment Claim and Appointment of 2 Counsel.” (ECF No. 20.) 3 Accordingly, the Court VACATES the judgment, see ECF No. 14, entered on 4 February 4, 2021. The Court GRANTS Plaintiff leave to file a Third Amended Complaint 5 in which he must re-allege his First Amendment claims against Defendant Avalos and 6 correct the deficiencies identified in the Court’s February 4, 2021 and November 25, 2020 7 Orders as to his Eighth Amendment claims. Plaintiff must also attach to his Third Amended 8 Complaint any exhibits that support the claims found in his Third Amended Complaint. 9 Plaintiff may not add any additional claims or defendants. 10 II. Motion to Appoint Counsel 11 In addition, Plaintiff seeks appointment of counsel because he is “unable to afford 12 counsel” and the issues are “very complex.” (ECF No. 20 at 1.) All documents filed pro 13 se are liberally construed, and “a pro se complaint, however inartfully pleaded, must be 14 held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. 15 Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976) (internal 16 quotations omitted)). But there is no constitutional right to counsel in a civil case; and the 17 claims in this matter do not demand that the Court exercise its limited discretion to request 18 that an attorney represent him pro bono pursuant to 28 U.S.C. § 1915(e)(1) at this stage of 19 the case. See Lassiter v. Dept. of Social Servs., 452 U.S. 18, 25 (1981); Agyeman v. Corr. 20 Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004). Only “exceptional circumstances” 21 support such a discretionary appointment. Terrell v. Brewer, 935 F.3d 1015, 1017 (9th Cir. 22 1991); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Exceptional circumstances 23 exist where there is cumulative showing of both a likelihood of success on the merits and 24 a demonstrated inability of the pro se litigant to articulate his claims in light of their legal 25 complexity. Id. 26 As currently pleaded, the Court finds that Plaintiff’s claims are typical and not 27 legally “complex.” Agyeman, 390 F.3d at 1103. Therefore, the Court DENIES Plaintiff’s 28 Motion for Appointment of Counsel (ECF No. 20). 1 Conclusion and Order 2 For the reasons discussed, the Court: 3 1) | VACATES the Clerk’s Judgment entered on February 4, 2021; 4 2) DENIES without prejudice the Plaintiff's Motion to Appoint Counsel (ECF 5 || No. 20); and 6 3) GRANTS Plaintiff's Motion for Extension of Time (ECF No. 20) and 7 ||\GRANTS him sixty (60) days leave from the date of this Order in which to file an 8 || Amended Complaint that re-alleges the First Amendment access to courts claim against 9 ||Defendant Avalos and which cures all the deficiencies of pleading as to his Eighth 10 || Amendment claims. Plaintiff's Amended Complaint must be complete by itself without 11 |/reference to his original pleading. Defendants not named and any claim not re-alleged in 12 Amended Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach 13 || Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n 14 || amended pleading supersedes the original.”). 15 The Clerk of Court is directed to mail Plaintiff a court approved civil rights 16 |}complaint form for his use in amending. 17 18 19 || Dated: April 18, 2022 Mk 20 / Hon. John A. Houston / United States District Judge 22 23 24 25 26 27 28