United States District Court, D. Nevada
KARLW. SCHENKER, Plaintiff,
NEVADA DEPARTMENT OF CORRECTIONS, et al., Defendants.
VALERIE P. COOKE, JUDGE.
who is a prisoner in the custody of the Nevada Department of
Corrections ("NDOC"), has submitted a civil rights
complaint pursuant to 42 U.S.C. § 1983, and has filed an
application to proceed in forma pauperis, a motion
for appointment of counsel, a motion to extend the copy
limit, a motion to show cause, a motion for res extincta, a
February 5, 2018 notice (ECF No. 5), a March 29, 2018 notice
(ECF No. 6), and a June 25, 2018 notice (ECF No. 8) (ECF No.
1-1, 1-2, 1-3, 3, 4, 5, 6, 8). The matter of the filing fee
shall be temporarily deferred.
Motion for Appointment of Counsel
has filed a motion for appointment of counsel. (ECF No. 1-2).
A litigant does not have a constitutional right to appointed
counsel in 42 U.S.C. § 1983 civil rights claims.
Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir.
1981). Pursuant to 28 U.S.C. § 1915(e)(1), "[t]he
court may request an attorney to represent any person unable
to afford counsel." However, the court will appoint
counsel for indigent civil litigants only in
"exceptional circumstances." Palmer v.
Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (§ 1983
action). "When determining whether 'exceptional
circumstances' exist, a court must consider 'the
likelihood of success on the merits as well as the ability of
the petitioner to articulate his claims pro se in
light of the complexity of the legal issues involved."
Id. "Neither of these considerations is
dispositive and instead must be viewed together."
instant case, the Court does not find exceptional
circumstances that warrant the appointment of counsel. The
Court denies the motion for appointment of counsel at this
time, without prejudice.
Motion to Extend the Copy Limit
has filed a motion to extend his copy work limit. (ECF No.
1-3). An inmate has no constitutional right to free
photocopying. Johnson v. Moore, 948 F.2d 517, 521
(9th Cir. 1991). Pursuant to NDOC administrative regulation
722.01 (7)(D), inmates "can only accrue a maximum of
$100 debt for copy work expenses for all cases, not per
case." In this district, courts have found that they can
order a prison to provide limited photocopying when it is
necessary for an inmate to provide copies to the court and
other parties. See Allen v. Clark Cnty. Del Ctr.,
2:10-CV-00857-RLH, 2011 WL 886343, *2 (D. Nev. Mar. 11,
has presented no information to indicate that an extension is
necessary at this time, and it is apparent that Plaintiff has
been able to file a significant number of documents in this
case since filing his motion for an extension of the copy
work limit. Therefore, the Court will deny the motion to
extend the copy work limit without prejudice to Plaintiff
renewing the motion in the future should he be able to
demonstrate a need for an extension at that time.
Motion to Show Cause and Motion for Res Extincta
December 27, 2017, Plaintiff filed a motion to show cause.
(ECF No. 3). On January 16, 2018, Plaintiff filed
a motion for res extincta regarding the
motion to show cause. (ECF No. 4). In the motion for res
extincta, Plaintiff represented that the motion to show cause
was moot. (Id. at 1.) The Court construes the motion
for res extincta as a motion to dismiss the motion to show
cause. So construed, the motion for res extincta (ECF No. 4)
is granted and the motion to show cause (ECF No. 3) is
dismissed as moot.
Leave to Amend
appears to the Court that, in Plaintiffs February 5, 2018
notice (ECF NO. 5), March 29, 2018 notice (ECF No. 6), and
June 25, 2018 notice (ECF No. 8), Plaintiff seeks to amend
his complaint. The Court will not piecemeal documents
together to determine whether Plaintiff states any colorable
claims in his complaint. The Court therefore declines to
screen Plaintiffs complaint at this time and grants Plaintiff
leave to file a First Amended Complaint.
Plaintiff chooses to file an amended complaint he is advised
that an amended complaint supersedes (replaces) the original
complaint and, thus, the amended complaint must be complete
in itself. See Hal Roach Studios, Inc. v. Richard Feiner
& Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989)
(holding that "[t]he fact that a party was named in the
original complaint is irrelevant; an amended pleading
supersedes the original"). Plaintiffs amended complaint
must contain all claims, defendants, and specific factual
allegations that Plaintiff wishes to pursue in this lawsuit.
Moreover, Plaintiff must file the amended complaint
on this Court's approved prisoner civil rights form and
it must be entitled "First Amended Complaint."
Plaintiff is advised to follow the instructions on the form
and, for each claim, allege the particular facts that show
how each Defendant violated his civil
February 5, 2018 notice (ECF No. 5), March 29, 2018 notice
(ECF No. 6), and June 25, 2018 notice (ECF No. 8) shall be
stuck from the docket as all claims, defendants, and specific
factual allegations that Plaintiff wishes to pursue in this
litigation must be contained within either the original