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Schenker v. Nevada Department of Corrections

United States District Court, D. Nevada

July 10, 2018

KARLW. SCHENKER, Plaintiff,
v.
NEVADA DEPARTMENT OF CORRECTIONS, et al., Defendants.

          ORDER

          VALERIE P. COOKE, JUDGE.

         Plainitff, 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.

         1. Motion for Appointment of Counsel

         Plaintiff 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." Id.

         In the 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.

         II. Motion to Extend the Copy Limit

         Plaintiff 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, 2011).

         Plaintiff 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.

         III. Motion to Show Cause and Motion for Res Extincta

         On 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.

         IV. Leave to Amend

         It 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.

         If 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 rights.[1]

         Plaintiffs 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 ...


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