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Bondurant v. Lamb

United States District Court, S.D. California

February 26, 2014

TRAVIS BONDURANT, Inmate Booking No. 13717960 Plaintiff,
v.
DAVID LAMB; GARET NUGENT; MICHAEL TAGG; CITY OF SAN DIEGO, Defendants.

No. ORDER GRANTING MOTION FOR EXTENSION OF TIME TO FILE FIRST AMENDED COMPLAINT

MICHAEL M. ANELLO, District Judge.

Plaintiff, currently housed in the George Bailey Detention Facility located in San Diego, California, and proceeding pro se, has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983, along with a Motion to Proceed In Forma Pauperis ("IFP"). On July 11, 2013, the Court granted Plaintiff's Motion to Proceed IFP and sua sponte dismissed his Complaint for failing to state a claim and for seeking monetary damages against immune defendants. (Doc. No. 4.) Plaintiff was granted leave to file an Amended Complaint in order to correct the deficiencies of pleading identified in the Court's Order. ( Id. at 7-8.) The time to file an Amended Complaint has since passed but Plaintiff has filed a Motion for Extension of Time to File a First Amended Complaint. (Doc. No. 6.) In this Motion, Plaintiff indicates that he has been hospitalized for several months and has been unable to file an Amended Complaint. ( Id. )

Plaintiff also seeks appointment of counsel. 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 DENIES Plaintiff's request for appointment of counsel 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.

However, the Court finds good cause to grant Plaintiff an extension of time in which to comply with its July 11, 2013 Order. "Strict time limits... ought not to be insisted upon' where restraints resulting from a pro se... plaintiff's incarceration prevent timely compliance with court deadlines." Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987) (citing Tarantino v. Eggers, 380 F.2d 465, 468 (9th Cir. 1967); see also Bennett v. King, 205 F.3d 1188, 1189 (9th Cir. 2000).

CONCLUSION AND ORDER

Accordingly, the Court hereby GRANTS Plaintiff's Motion for Extension of Time to File a First Amended Complaint (Doc. No. 6). Plaintiff is granted sixty (60) days from the date this Order is "Filed" in which to file a First Amended Complaint which cures all the deficiencies of pleading noted in the Court's July 11, 2013 Order. Plaintiff is once again cautioned that should he elect to amend, his Amended Complaint must be complete in itself, that it will supersede his original Complaint, and that any claim not re-alleged against any Defendant previously named will be considered waived. See S.D. CAL. CIVLR 15.1; King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

In addition, the Clerk of Court is directed to mail a copy of this Order to Plaintiff at Scripps Memorial Hospital, 9888 Genessee Avenue, Dept. 5W PCU, La Jolla, California 92037. Plaintiff is directed to notify the Court of any future changes of address.

IT IS SO ORDERED.


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