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Condalee Morris v. Schwarzenegger; Matthew Cate; Larry Scribner

January 3, 2011

CONDALEE MORRIS,
PLAINTIFF,
v.
SCHWARZENEGGER; MATTHEW CATE; LARRY SCRIBNER;
J. SANDOVAL; T. CANADA; JOSE BUILTEMAN; M. BOOTH; AND L. MATTHEWS, DEFENDANTS.



The opinion of the court was delivered by: Hon. John A. Houston United States District Judge

ORDER:

(1) DENYING MOTION FOR APPOINTMENT OF COUNSEL;

(2) DISMISSING DEFENDANTS AND

(3) DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF SECOND AMENDED COMPLAINT & 28 U.S.C. § 1915(d) PURSUANT TO FED.R.CIV.P. 4(c)(3)

I.

Procedural History On June 17, 2010, Condalee Morris ("Plaintiff"), a state prisoner currently incarcerated at Calipatria State Prison located in Calipatria, California, and proceeding in pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. In addition, Plaintiff filed a Motion to Proceed In Forma Pauperis ("IFP"), along with a Motion for Appointment of Counsel and a "Request for Court to Grant the Permanent Injunction." [Doc. Nos. 2-4.]

On August 25, 2010, the Court granted Plaintiff's Motion to Proceed IFP, denied Plaintiff's Motion for Appointment of Counsel, denied Plaintiff's Motion for Permanent Injunction and sua sponte dismissed his Complaint for failing to state a claim. See Aug. 25, 2010 Order at 7-8. Plaintiff was granted leave to file an Amended Complaint in order to correct the deficiencies of pleading identified by the Court. Id. at 8. On September 23, 2010, Plaintiff filed his First Amended Complaint ("FAC"), along with a second Motion for Appointment of Counsel. The Court, once again, conducted a sua sponte screening and dismissed Plaintiff's First Amended Complaint for failing to state a claim.

On October 28, 2010, Plaintiff filed a Second Amended Complaint, along with his third Motion for Appointment of Counsel. In his Second Amended Complaint he no longer names Schwarzenegger, Cate, Scribner or Builteman as Defendants. Thus, Defendants Schwarzenegger, Cate, Scribner and Builteman are DISMISSED from this action. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (Defendants not named and all claims not re-alleged in the Amended Complaint will be deemed to have been waived.)

II. MOTION FOR APPOINTMENT OF COUNSEL [Doc. No. 15]

Plaintiff requests the appointment of counsel to assist him in prosecuting this civil action. The Constitution provides no right to appointment of counsel in a civil case, however, unless an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dept. of Social Services, 452 U.S. 18, 25 (1981). Nonetheless, under 28 U.S.C. § 1915(e)(1), district courts are granted discretion to appoint counsel for indigent persons. This discretion may be exercised only under "exceptional circumstances." Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). "A finding of exceptional circumstances requires an evaluation of both the 'likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved.' Neither of these issues is dispositive and both must be viewed together before reaching a decision." Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).

The Court deniesPlaintiff's request without prejudice, as neither the interests of justice nor exceptional circumstances warrant appointment of counsel at this time. LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017.

III.

SCREENING PURSUANT TO 28U.S.C.§§1915(e)(2)&1915A(b)

As discussed in the previous Orders, because Plaintiff is proceeding IFP and is a "prisoner" as defined by 28 U.S.C. § 1915(h), the Court must also review his Amended Complaint sua sponte before service, and dismiss the entire action, or any part of his Amended Complaint, if it is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are immune. See 28 U.S.C. § 1915(e)(2)(B) and § 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. ยง 1915(e) "not only permits but requires" the court to ...


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