United States District Court, D. Nevada
ANDRE M. INGRAM Plaintiffs,
CLARK COUNTY SCHOOL DISTRICT, et al., Defendants.
HOFFMAN, JR. UNITED STATES MAGISTRATE JUDGE
before the court is plaintiff Andre M. Ingram's motion
for appointment of counsel (ECF No. 38), filed on February
21, 2019. Defendants Clark County School District
(“CCSD”), Kris Patrick, Aida Rivera, and Joann V.
Laeken filed a response (ECF No. 41) on February 22, 2019.
Plaintiff did not file a reply.
before the court is plaintiff's motion to amend (ECF No.
40), filed on February 22, 2019. Defendants filed a response
(ECF No. 45) on March 5, 2019. Plaintiff filed a reply (ECF
No. 46) on March 12, 2019.
employment discrimination case, plaintiff alleges
retaliation, disparate treatment, harassment, and sexual
harassment. (Am. Compl. (ECF No. 9).) Plaintiff moved to
proceed in forma pauperis, but the court denied the
motion, finding that plaintiff did not demonstrate an
inability to pay the filing fee. (Order (ECF No. 5).)
Plaintiff then paid the $400.00 filing fee. (Receipt of
Payment (ECF No. 6).)
now requests a court-appointed attorney, arguing that he is
unable to afford counsel and that his claims are meritorious.
(Mot. for Appointment of Counsel (ECF No. 38).) Defendants
respond that the court should deny plaintiff's request as
plaintiff has not demonstrated an inability to afford counsel
and that plaintiff's claims are meritless. (Resp. (ECF
also moves for leave to amend the second amended complaint,
arguing that justice so requires the amendment. (Mot. to Amend
(ECF No. 40).) Defendants respond that the court should not
consider the motion because plaintiff failed to support his
motion with points and authorities, and that plaintiff failed
to attach the proposed amended complaint. (Resp. (ECF No.
45).) Plaintiff replies that he is making an effort to comply
with the Federal Rules of Civil Procedure and the Local
Rules. (Reply (ECF No. 46).) Plaintiff also argues that the
affidavit from a CCSD employee demonstrates the affiant's
knowledge of CCSD's operational practices. (Id.)
MOTION FOR APPOINTMENT OF COUNSEL
moves for the appointment of counsel. Civil litigants do not
have a Sixth Amendment right to appointed counsel.
Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir.
1981). In very limited circumstances, federal courts are
empowered to request an attorney to represent an indigent
civil litigant. For example, courts have discretion, under 28
U.S.C. § 1915(e)(1), to “request” that an
attorney represent indigent civil litigants upon a showing of
“exceptional circumstances.” Agyeman v.
Corrections Corp. of Am., 390 F.3d 1101, 1103 (9th Cir.
2004). The circumstances in which a court will make such a
request, however, are exceedingly rare and require a finding
of extraordinary circumstances. United States v. 30.64
Acres of Land, 795 F.2d 796, 799-800 (9th Cir. 1986);
Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.
determine whether the “exceptional circumstances”
necessary for appointment of counsel are present, the court
evaluates (1) the likelihood of plaintiff's success on
the merits and (2) the plaintiff's ability to articulate
his claim pro se “in light of the complexity of the
legal issues involved.” Agyeman, 390 F.3d at
1103 (quoting Wilborn, 789 F.2d at 1331). Neither of
these factors is dispositive and both must be viewed
together. Wilborn, 789 F.2d at 1331. It is within
the court's discretion whether to request that an
attorney represent an indigent civil litigant under 28 U.S.C.
§ 1915(e)(1). Palmer v. Valdez, 560 F.3d 965,
970 (9th Cir. 2009).
Ingram paid the filing fee and is not proceeding in forma
pauperis under § 1915. Even if Ingram were
indigent, he does not demonstrate the exceptional
circumstances required for the appointment of an attorney.
Having reviewed the allegations in the amended complaint and
the pending motions to dismiss, the court finds that
plaintiff has a limited likelihood of success on the merits.
Additionally, plaintiff has, thus far, demonstrated an
ability to articulate his claims without an attorney, and the
legal issues in this case are not complex. Any pro se
litigant “would be better served with the assistance of
counsel.” Rand v. Rowland, 113 F.3d 1520, 1525
(9th Cir. 1997) (citing Wilborn, 789 F.2d at 1331).
Nonetheless, so long as a pro se litigant can
“articulate his claims against the relative complexity
of the matter, ” the “exceptional
circumstances” which might require the appointment of
counsel do not exist. Id. The court will therefore
deny plaintiff's motion for appointment of counsel.
MOTION TO AMEND
general rule, “a party may amend its pleadings once as
a matter of course” within twenty-one days of service,
or within twenty-one days after service of a responsive
pleading or motion under Rule 12(b), (e), or (f).
Fed.R.Civ.P. 15(a)(1). Otherwise, a party must obtain the
opposing party's consent or leave of the court.
Fed.R.Civ.P. 15(a)(2). The court has broad discretion to
grant or deny leave to amend, but should grant leave when
“justice so requires.” Id.; see also
Mir v. Fosburg, 646 F.3d 342, 347 (9th Cir. 1980). The
court may consider “bad faith, undue delay, prejudice
to the opposing ...