United States District Court, D. Nevada
ORDER & REPORT & RECOMMENDATION
J. ALBREGTS, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on several motions filed by
Plaintiff and the Court will address each in turn. First is
Plaintiff's Motion for Production of Documents (ECF No.
32) filed on August 14, 2019. Plaintiff requests copies of
every court filing. The Court is not responsible for
providing copies of court filings to litigants. 28 U.S.C.
§ 1915. Further, there is a per page charge for copy
work. Copies produced from an electronic format (CM/ECF) are
$.10 per page; copies produced from a physical format are
$.50 per page. The Court cannot provide copies or mailing
service for parties, even indigent plaintiffs proceeding
in forma pauperis. If Plaintiff wishes to receive
copies of electronically filed documents from the Court from
CM/ECF, the cost is $0.10 per page. Nev. LR IC 1-1(i)(5); 28
U.S.C. § 1914. Therefore, the Court will deny
also filed a Motion for Appointment of Counsel (ECF No. 33)
on August 14, 2019 along with a Memorandum (ECF No. 40) and
Declaration (ECF No. 41) in support of his request, on
September 16, 2019. Defendants filed a Response (ECF No. 36)
on August 28, 2019. 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. Indeed, this is the third request
that Plaintiff has made and he has again failed to show the
exceptional circumstances that would warrant granting this
request. The Court denies the motion for appointment of
counsel. Plaintiff also filed a Motion requesting a court
decision on his request for appointment of counsel (ECF No.
45). Having considered Plaintiff's Motion for Appointment
of Counsel (ECF No. 33) in the instant order, the Court will
deny his request for submission as moot.
also filed a Motion of Extension of Time to File Disclosure
Statement (ECF No. 38) on September 4, 2019. Defendants filed
a Non-Opposition (ECF No. 42) on September 17, 2019. As a
result, the Court will grant Plaintiff's request and
order that the disclosure statement be submitted within
fourteen days of this order.
Plaintiff filed Motion for Leave to File a Second Amended
Complaint (ECF No. 39), to which Defendants filed a Response
(ECF No. 43), and Plaintiff filed a Reply (ECF No. 44). The
parties are familiar with the facts of this matter and the
Court will only repeat them here as necessary. The Court
previously screened Plaintiff's 532-page complaint and
dismissed it with leave to amend on July 9, 2018. (ECF No.
6). Thereafter, Plaintiff filed an amended complaint, which
the Court screened on January 7, 2019 and allowed only one
count to proceed against three NDOC corrections officers -
Logan, Padilla, and Lozano. (ECF No. 11). The Court also set
a deadline for Plaintiff to file a second amended complaint
for February 7, 2019 and granted him an extension of that
deadline to March 15, 2019. (ECF No. 14). Plaintiff failed to
timely file a second amended complaint by that deadline and
this action proceeded through a mediation - on the sole
remaining claim against the three defendants. (ECF No. 18).
party may amend its pleading once as a matter of course
within: (a) 21 days after serving it, or (b) . . . 21 days
after service of a motion under Rule 12(b) . . .”
Fed.R.Civ.P. 15(a)(1). In all other cases, “a party may
amend its pleading only with the opposing party's written
consent or the court's leave. The court should freely
give leave when justice so requires.” Id. at
(a)(2). “Courts may decline to grant leave to amend
only if there is strong evidence of ‘undue delay, bad
faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, or futility of amendment,
etc.'” Id. at 1117 (quoting Foman v.
Davis, 371 U.S. 178, 182 (1962)).
argue that Plaintiff is acting in bad faith seeking to amend
because he restates the same defendants, with the same set of
facts, and same theories of liability that the Court already
considered in screening the operative complaint. (ECF No.
43). Further, Defendants claim there is undue delay because
six months have passed since the deadline to file the second
amended complaint, there is prejudice to the newly named
defendants as the incidents at issue occurred over four years
ago, and amendment would be futile. (Id.). The Court
agrees; Plaintiff has already been afforded an opportunity to
amend his complaint and the proposed second amended complaint
does not cure the deficiencies identified by the Court. (ECF
No. 11). Further, the Court find undue delay and prejudice
given that this case has proceeded on the sole remaining
claim through a mediation. Therefore, it is recommended that
Plaintiff's motion to amend be denied.
THEREFORE ORDERED that Plaintiff's Motion for Production
of Documents (ECF No. 32) is denied.
FURTHER ORDERED that Plaintiff's Motion for Appointment
of Counsel (ECF No. 33) is denied.
FURTHER ORDERED that Plaintiff's Motion of Extension of
Time to File Disclosure Statement (ECF No. 38) is
granted. He shall have and extension of
fourteen days from the issuance of this order.
FURTHER ORDERED that Plaintiff's Motion - Request for
Submission of ECF No. 33 (ECF No. 45) is denied as
THEREFORE RECOMMENDED that Plaintiffs Motion for Leave to
File a Second Amended ...