United States District Court, C.D. California
Present: The Honorable Shashi Kewalramani, United States
(In Chambers) Order Denying Request For Appointment of
Counsel and Order To Show Cause Why Plaintiff's FAC
Should Not Be Dismissed
August 5, 2019, Plaintiff Eutimio Aispuro
(“Plaintiff”), proceeding pro se and
in forma pauperis (“IFP”),
constructively filed a civil rights complaint
(“Complaint” or “Compl.”) under 42
U.S.C. § 1983 (“§ 1983”) against Dr.
Dedilo, a Santa Barbara County Jail physician, and the Santa
Barbara County Sheriff (collectively,
“Defendants”), in their individual capacities.
Electronic Case Filing Number (“ECF No.”) 1,
Compl. Plaintiff's allegations arose out of incidents he
alleged occurred between August 2016-October 2017.
Id. at 3.
September 20, 2019, the Court issued an Order Dismissing
Plaintiff's Complaint With Leave To Amend
(“ODLA”). ECF No. 9, ODLA. The Court instructed
Plaintiff that should he choose to amend and refile his
Complaint, he should follow the instructions listed in
Section IV of the ODLA. Id. at 10-12.
October 11, 2019, Plaintiff constructively filed a First
Amended Complaint (“FAC”). ECF No. 10, FAC. In
it, Plaintiff named Dr. Gustaveson, a Santa Barbara County
Jail employee and medical doctor, in his individual and
official capacity, as Defendant (“Dr.
Gustaveson”). ECF No. 10, FAC. Plaintiff also requested
that the Court appoint him counsel in this case. Id.
REQUEST FOR APPOINTMENT OF COUNSEL
is no constitutional right to appointed counsel in civil
rights actions. Storseth v. Spellman, 654 F.2d 1349,
1353 (9th Cir. 1981). A court has no direct way to pay
appointed counsel and cannot compel an attorney to represent
a plaintiff. See Mallard v. U.S. Dist. Court, 490
U.S. 296, 301-10 (1989). In exceptional circumstances, a
court may request counsel to voluntarily provide
representation. 28 U.S.C. § 1915(e)(1); see
Mallard, 490 U.S. at 301-10. To decide whether
“exceptional circumstances” exist, a court
evaluates both the likelihood of a plaintiff's success on
the merits and plaintiff's ability to articulate claims
pro se. Palmer v. Valdez, 560 F.3d 965, 970 (9th
Cir. 2009); Terrell v. Brewer, 935 F.2d 1015, 1017
(9th Cir. 1991).
has not alleged changed circumstances since the Court's
previous denial of request for appointment of counsel.
See ECF No. 9, ODLA at 10. At this juncture in the
case, the Court does not find that such exceptional
circumstances exist to warrant appointment of counsel. The
Court assures Plaintiff that it will liberally construe the
pleadings and give Plaintiff the benefit of the doubt.
See Karim-Panahi v. Los Angeles Police Dep't,
839 F.2d 621, 623 (9th Cir. 1988).
the Court DENIES Plaintiff's request for
appointment of counsel, without prejudice.
FIRST AMENDED COMPLAINT
reviewing Plaintiff's FAC, it appears that the incident
from which the alleged rights violations stemmed is different
than the incident described in the previous Complaint.
See ECF Nos 1, 10.
previous Complaint named Dr. Dedilo and the Santa Barbara
County Sheriff as Defendants and detailed incidents that
occurred between August 2016 and October 2017 after Plaintiff
had a “lymphonic tumor” growing inside his
“lower back area.” ECF No. 1, Compl. at 3, 5.
Conversely, in the FAC, Plaintiff named only Dr. Gustaveson
as a Defendant and Plaintiff detailed an incident from May
11, 2018, wherein Plaintiff alleges that Dr. Gustaveson
diagnosed Plaintiff with a “lipoma type tumor, caused
by cancer” that left Plaintiff “in severe pain
literally dying from blocked intestines . . . .” ECF
No. 10, FAC at 1, 3, 5.
Court is unsure whether Plaintiff wishes to dismiss his
previously filed Complaint and file a new Complaint, or if he
wishes to add Dr. Gustaveson to his original allegations. The
Court is also unsure whether Plaintiff intended to dismiss
Dr. Dedilo and the Santa Barbara County Sheriff from the
action. However, as the Court instructed in the ODLA,
Plaintiff must allege all claims and defendants in any FAC
filed and, also, Plaintiff is not permitted
to “include in the caption or body of
the FAC any ...