United States District Court, E.D. California
CINDY CE CE YOUNG, formerly known as Christopher Duke Young, Plaintiff,
CHRISTOPHER SMITH, et al., Defendants.
M. KELLISON UNITED STATES MAGISTRATE JUDGE
a prisoner proceeding pro se, brings this civil rights action
pursuant to 42 U.S.C. § 1983. Pending before the court
are the following motions: (1) plaintiff's motion for
leave to file a supplemental complaint (Doc. 35); (2)
plaintiff's motion for appointment of counsel (Doc. 40);
and (3) defendant Smith's motion for an extension of time
to file a response to the first amended complaint (Doc. 37).
seeks the appointment of counsel. The United States Supreme
Court has ruled that district courts lack authority to
require counsel to represent indigent prisoners in §
1983 cases. See Mallard v. United States Dist.
Court, 490 U.S. 296, 298 (1989). In certain exceptional
circumstances, the court may request the voluntary assistance
of counsel pursuant to 28 U.S.C. § 1915(e)(1). See
Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991);
Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th
Cir. 1990). 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 on his own in light of the
complexity of the legal issues involved. See
Terrell, 935 F.2d at 1017. Neither factor is dispositive
and both must be viewed together before reaching a decision.
present case, the court does not at this time find the
required exceptional circumstances. First, plaintiff has
demonstrated an ability to articulate her claims on her own.
Second, the legal question involved - whether defendants were
deliberately indifferent to a serious medical need - is not
particularly complex. Finally, while plaintiff has
articulated coherent claims and has the possibility of
prevailing, the court cannot say at this early stage of the
proceedings that plaintiff is likely to prevail on the
merits. Plaintiff's motion for appointment of counsel
will be denied.
also seeks leave of court to file a supplemental complaint.
The Federal Rules of Civil Procedure provide that a party may
amend or supplement his or her pleading once as a matter of
course within 21 days of serving the pleading or, if the
pleading is one to which a responsive pleading is required,
within 21 days after service of the responsive pleading,
see Fed.R.Civ.P. 15(a)(1)(A), or within 21 days
after service of a motion under Rule 12(b), (e), or (f) of
the rules, whichever time is earlier, see
Fed.R.Civ.P. 15(a)(1)(B). In all other situations, a
party's pleadings may only be amended or supplemented
upon leave of court or stipulation of all the parties.
See Fed.R.Civ.P. 15(a)(2). Where leave of court to
amend is required and sought, the court considers the
following factors: (1) whether there is a reasonable
relationship between the original and amended/supplemental
pleadings; (2) whether the grant of leave to amend/supplement
is in the interest of judicial economy and will promote the
speedy resolution of the entire controversy; (3) whether
there was a delay in seeking leave to amend/supplement; (4)
whether the grant of leave to amend/supplement would delay a
trial on the merits of the original claim; and (5) whether
the opposing party will be prejudiced by
amendment/supplement. See Jackson v. Bank of
Hawai'i, 902 F.2d 1385, 1387 (9th Cir. 1990). Leave
to amend should be denied where the proposed amendment is
frivolous. See DCD Programs, Ltd. v. Leighton, 833
F.2d 183, 186 (9th Cir. 1987).
present case, leave of court is required because plaintiff
filed an amended complaint - the operative first amended
complaint - as of right. Plaintiff now seeks to file a
supplemental complaint alleging that, since this action was
filed, the defendants have refused to provide her female
clothing and cosmetics. According to plaintiff, these new
claims were only exhausted through the prison grievance
process in late 2015.
consideration of the factors above, the court finds that
leave to file a supplemental complaint should not be granted.
First, there is no reasonable relationship between the claims
raised in the amended complaint - which relate to alleged
deliberate indifference to serious medical needs arising from
plaintiff's gender dysphoria - and the proposed new
claims. While the new claims are related to plaintiff's
gender dysphoria, they are not related legally to medical
claims currently raised in the first amended complaint.
Second, defendants would be prejudices by allowing the new
claims to proceed in the current action. As plaintiff admits,
the new claims were only exhausted in late 2015 - many years
after this action was initiated. Because claims must
be exhausted before suit is filed, allowing the new
claims to be added to the current action would essentially
defeat the purpose of the exhaustion requirement. Finally,
allowing the new claims to proceed in this action would only
serve to delay a resolution on the merits of plaintiff's
original medical claims.
Smith seeks an extension of time to file a response to the
first amended complaint. On March 30, 2016, the court
extended the time to file a response to May 27, 2016. On
April 11, 2016, plaintiff filed an interlocutory appeal of
the court's March 31, 2016, order. Defendant Smith's
current motion for an extension of time was filed on May 24,
2016 - while the appeal was still pending at the Ninth
Circuit Court of Appeals. On June 13, 2016, the Ninth Circuit
issued an order and mandate granting plaintiffs motion for
voluntary dismissal of the appeal. Jurisdiction having been
returned to this court, and good cause appearing therefor,
defendant Smith's motion for an extension of time is
granted, nunc pro tunc to May 24, 2016. Defendant Smith shall
have 60 days from the date of this order to file a response
to the first amended complaint. By separate order issued
herewith, the court will direct service of process on the
IT IS HEREBY ORDERED that:
Plaintiffs motion for the appointment of counsel (Doc. 40) is
Plaintiffs motion for leave to file a supplemental complaint
(Doc. 35) is denied;
Defendant Smith's motion for an extension of time (Doc.
37) is granted; and
Defendant Smith shall file a response to the first amended
complaint within ...