United States District Court, D. Nevada
ORDER MOTION FOR ATTORNEY [ECF NO. 3], MOTION TO
EXTEND [ECF NO. 8], AND MOTION FOR EXPEDITED RELIEF [ECF NO.
FERENBACH, UNITED STATES MAGISTRATE JUDGE.
the Court is pro se Plaintiff Terri Gomez's Motion U.S.
Court for an Attorney (ECF No. 3), Motion to Extend Time (ECF
No. 8), and Motion requesting expedited relief (ECF No. 12).
For the reasons discussed below, Plaintiff's motion for
attorney is denied without prejudice, her motion to extend
time is granted, and her motion requesting expedited relief
represents that she cannot afford an attorney in this case.
(ECF No. 3). She is concerned that “[i]f the U.S.
Court…does not appoint an attorney, [her] current
employer will use their system to further discriminate
against me.” (Id.).
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” taking into account the merits of the
case and the party's ability to articulate its claims in
light of the case's complexity. Palmer v.
Valdez, 560 F.3d 965, 970 (9th Cir. 2009).
Court previously granted Plaintiff's application to
proceed in forma pauperis. (ECF No. 7). However,
Plaintiff's motion for attorney does not discuss whether
“exceptional circumstances” are present in this
case. Plaintiff does not explain her vague concerns regarding
how Defendants would discriminate against her in this case if
she does not have an attorney. Because Plaintiff's
complaint has not survived the Court's screening process,
the Court cannot evaluate the merits of her case. Therefore,
the Court denies Plaintiff's motion for attorney at this
stage of the case, without prejudice.
TO EXTEND TIME
April 19, 2019, the Court dismissed Plaintiff's amended
complaint without prejudice and gave Plaintiff until May 10,
2019 to file a second amended complaint. (ECF No. 7). On May
8, 2019, Plaintiff filed a motion to extend time to file the
second amended complaint. (ECF No. 8). Before the Court could
rule on the motion, Plaintiff filed a second amended
complaint on May 10, 2019. (ECF No. 9).
has indicated that she may still seek to add new allegations
and parties to her complaint. (ECF Nos. 10, 11). Rather than
screen the second amended complaint, the Court will grant
Plaintiff's motion to extend time. This will allow
Plaintiff to make any desired changes to her second amended
complaint. Should Plaintiff not file a third amended
complaint, the Court will fully screen the second amended
the Court is not currently screening the second amended
complaint, the Court will provide guidance to Plaintiff
regarding changes that may be made in a third amended
complaint. While reading the second amended complaint, the
Court noted four main issues and areas of concern.
the second amended complaint makes references to
Plaintiff's previous complaints. (ECF No. 9 at 10, 11,
23, 45). As the Court has stated (ECF No. 7 at 3), an amended
complaint must be “complete in itself, including
exhibits, without reference to the superseded
pleading.” LR 15-1. Should Plaintiff file a third
amended complaint, references to Plaintiff's previous
complaints must not be relied on.
the second amended complaint does not follow a logical,
straight-forward timeline. The facts of the complaint begin
in August 2018 and continue through March 2019 (ECF No. 9 at
11-21) before circling back to 2016 and 2017 (Id. at
23-40). The complaint ends by describing facts scattered
throughout 2016, 2017, 2018, and 2019. (Id. at
41-56). Should Plaintiff file a third amended complaint, a
timeline that the Court can follow would be helpful.
the second amended complaint indicates that Plaintiff is
attempting to litigate events the Court cannot consider at
this time. Plaintiff states, “the EEOC ha[s] not given
me all the right to sue letters, nor has [the] Nevada Equal
Rights Commission.” (ECF No. 9 at 57). “In order
to establish subject matter jurisdiction over her Title VII
claim, Plaintiff [i]s required to exhaust her administrative
remedies…by filing a timely charge with the EEOC, or
the appropriate state agency, thereby affording the agency an
opportunity to investigate the charge.” B.K.B. v.
Maui Police Dep't, 276 F.3d 1091, 1099 (9th Cir.
2002), as amended (Feb. 20, 2002), citing
42 U.S.C. § 2000e-5(b). The Court cannot hear claims
before Plaintiff has received a notice of right to sue
covering the relevant allegations. See Myers-Desco v.
Lowe's HIW, Inc., 484 Fed.Appx. 169, 171 (9th Cir.
2012). Should Plaintiff file a third amended complaint, only
allegations that are covered by a notice of right to sue
letter must be included.
the second amended complaint does not sufficiently describe
how Defendants' actions are connected to a discriminatory
or retaliatory motive covered by Title VII or the Americans
with Disabilities Act. The Court will not go through each
allegation, but it will provide examples. Plaintiff is clear
regarding how some negative actions are based on
discrimination or retaliation, such as individuals treating
Plaintiff (a Mexican-American) differently than Caucasian
co-workers (ECF No. 9 at 12, 21) or an individual retaliating
against Plaintiff for reporting possible discrimination
(Id. at 38). However, Plaintiff also states that an
individual retaliated against her because the individual was
forced to switch classrooms, which is not protected under
Title VII or the Americans with Disabilities Act. (ECF No. 9
at 16). In addition, Plaintiff makes allegations regarding
retaliation without stating what the retaliation was ...