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Bynoe v. State

United States District Court, D. Nevada

July 12, 2018

MICHAEL BRUCE BYNOE, Plaintiff,
v.
STATE OF NEVADA, et al., Defendants.

          ORDER

          VALERIE P. COOKE UNITED STATES MAGISTRATE JUDGE

         Plaintiff, 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 paupens, motions for appointment of counsel, an ex parte motion to mail his complaint instead of e-filing it[1], a motion for leave to file a first amended complaint with a document that appears to be an addendum to Count III of the original complaint, a motion for leave to file a second amended complaint with a document that appears to be another addendum to Count III of the original complaint, and a document that is entitled "Third Amended Complaint" but also appears to be an addendum to the original complaint. (ECF No. 1, 1-1, 1-2, 1-3, 3, 3-1, 4, 4-1, 5, 6). The matter of the filing fee shall be temporarily deferred.

         I. Leave to Amend

         It appears to the Court that Plaintiff seeks to amend Count III of his original complaint. The documents Plaintiff has filed with his motion for leave to file a first amended complaint (ECF No. 3-1) and his motion for leave to file a second amended complaint (ECF No. 4-1) are not complete complaints and appear to be supplemental allegations. Similarly, the document that Plaintiff has entitled "Third Amended Complaint" is not a complete complaint (ECF No. 6), but instead contains supplemental allegations. The Court will not piecemeal documents together to determine whether Plaintiff states a colorable claim in his complaint. The Court therefore declines to screen Plaintiffs complaint at this time and grants Plaintiff leave to file a complete First Amended Complaint.

         The Court notes that, if Plaintiff chooses to file a complete amended complaint, Plaintiff shall file that amended complaint within thirty (30) days from the date of entry of this order. If Plaintiff chooses not to file a complete amended complaint, the Court will screen Plaintiffs original complaint (ECF No. 1-1) only.

         If Plaintiff chooses to file a complete 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."

         Plaintiffs motion for leave to file a first amended complaint (ECF No. 3) and motion for leave to file a second amended complaint (ECF No. 4) are denied and the Court will not file the documents submitted with those motions. In addition, Plaintiffs "Third Amended Complaint" (ECF No. 6) shall be stuck from the docket because all claims, defendants, and specific factual allegations that Plaintiff wishes to pursue in this litigation must be contained within either the original complaint or within the First Amended Complaint, should Plaintiff choose to file a complete amended complaint.

         II. Motions for Appointment of Counsel

         Plaintiff has filed multiple motions for appointment of counsel. (ECF No. 1-3, 5). 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 cannot assess the complexity of the case or the likelihood of success on the merits until it receives an amended complaint or is notified that Plaintiff intends to proceed on the original complaint. The Court therefore denies the motions for appointment of counsel at this time, without prejudice.

         III. Conclusion

         It is therefore ordered that a decision on the application to proceed in forma pauperis (ECF No. 1) is deferred.

         It is further ordered that Plaintiffs ex parte motion to mail his complaint (ECF No. 1-2) is granted.

         It is further ordered that Plaintiffs motion for leave to file a first amended complaint (ECF No. 3) and motion for leave to file a second amended complaint (ECF No. 4) are denied.

         It is further ordered that the "Third Amended Complaint" (ECF No. 6) shall be ...


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