(PC) Puckett v. Moreno et al, No. 2:2022cv00650 - Document 45 (E.D. Cal. 2023)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Jeremy D. Peterson on 12/04/2023 DENYING 41 Motion to Appoint Counsel without prejudice and RECOMMENDING the 37 Motion to Amend be denied as futile. Referred to Judge William B. Shubb. Objections due within 14 days after being served with these Findings and Recommendations. (Woodson, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DURRELL ANTHONY PUCKETT, 12 13 14 15 16 17 Plaintiff, Case No. 2:22-cv-00650-WBS-JDP (PC) ORDER DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL v. ECF No. 41 D. MORENO, et al., Defendants. FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF’S MOTION TO AMEND COMPLAINT BE DENIED ECF No. 37 18 19 Plaintiff brought this action on April 12, 2022, and, on January 23, 2023, I found that the 20 second amended complaint stated a viable Eighth Amendment failure to protect claim against 21 defendants Moreno, Haynes, Smith, and Williams. ECF No. 15. Then, after service was 22 accomplished and the case was scheduled, plaintiff filed a motion to amend his complaint, ECF 23 No. 37, seeking to add a First Amendment retaliation claim against defendant Haynes (and 24 possibly against defendants Moreno, Smith, and two unidentified “Doe” officers). ECF No. 38 at 25 4. Defendants have opposed amendment, ECF No. 39, and plaintiff has filed a reply, ECF No. 26 40. After review of the proposed amended complaint, I conclude that the proposed new claim is 27 non-cognizable, and, thus, amendment should be denied as futile. I will deny plaintiff’s motion to 28 1 1 appoint counsel.1 ECF No. 41. 2 3 Legal Standards Rule 15(a)(2) directs that a court “should freely give leave [to amend a complaint] when 4 justice so requires.” Courts should generally be liberal in allowing a party to amend. Sonoma 5 County Ass’n of Retired Emples. v. Sonoma County, 708 F.3d 1109, 1117 (9th Cir. 2013). Leave 6 to amend should be denied only where there is strong evidence of “undue delay, bad faith or 7 dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments 8 previously allowed, undue prejudice to the opposing party by virtue of allowance of the 9 amendment, [or] futility of amendment . . . .” Id. (quoting Foman v. Davis, 371 U.S. 178, 182 10 (1962)) (alteration in original). A motion may be denied solely based on its futility. See Miller v. 11 Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988) (“A motion for leave to amend may be 12 denied if it appears to be futile or legally insufficient.”). 13 Defendants argue, and I agree, that the proposed amendment is futile. The third amended 14 complaint vaguely alleges that plaintiff has suffered mental health problems because of “them”— 15 presumably the defendants—trying to get him killed by prison gangs. ECF No. 38 at 4. Plaintiff 16 alleges that these attempts are “caused by” retaliation and threats from defendant Haynes, though 17 he does not explain either this causality, the nature of the retaliation and threats, or the motivation 18 for the alleged retaliation. Neither does he adequately allege how this new claim is related to his 19 original failure-to-protect claim. In his reply, plaintiff claims that these allegations are related 20 because one led to the other, ECF No. 40 at 1, but he does not explain how. As such, this claim 21 would not be suitable to proceed past screening, and allowing plaintiff to amend only to add this 22 non-viable claim would be futile. 23 I will deny plaintiff’s motion to appoint counsel. ECF No. 41. Plaintiff does not have a 24 constitutional right to appointed counsel in this action, see Rand v. Rowland, 113 F.3d 1520, 1525 25 (9th Cir. 1997), and I lack the authority to require an attorney to represent plaintiff. See Mallard 26 v. U.S. District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). I may request 27 28 Plaintiff’s other, discovery-related motions, ECF Nos. 42 & 43, will be addressed in a separate order. 2 1 1 the voluntary assistance of counsel. See 28 U.S.C. § 1915(e)(1) (“The court may request an 2 attorney to represent any person unable to afford counsel”); Rand, 113 F.3d at 1525. However, 3 without a means to compensate counsel, I will seek volunteer counsel only in exceptional 4 circumstances. In determining whether such circumstances exist, “the district court must evaluate 5 both the likelihood of success on the merits [and] the ability of the [plaintiff] to articulate his 6 claims pro se in light of the complexity of the legal issues involved.” Rand, 113 F.3d at 1525 7 (internal quotation marks and citations omitted). 8 9 I cannot conclude that exceptional circumstances requiring the appointment of counsel are present here. Despite plaintiff’s allegations to the contrary, the allegations in the complaint are 10 not exceptionally complicated. Neither has plaintiff shown that he is likely to succeed on the 11 merits. Plaintiff does allege that he suffers from mental health issues and that he is on 12 medication, but, to date, he has represented himself adequately. If he needs additional time to file 13 pleadings because of his circumstances, he may motion for a reasonable extension of time. 14 15 16 17 Accordingly, it is ORDERED that plaintiff’s motion to appoint counsel, ECF No. 41, is DENIED without prejudice. Further, it is RECOMMENDED that plaintiff’s motion to amend, ECF No. 37, be DENIED as futile. 18 These findings and recommendations are submitted to the United States District Judge 19 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 20 after being served with these findings and recommendations, any party may file written 21 objections with the court and serve a copy on all parties. Such a document should be captioned 22 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 23 objections shall be served and filed within fourteen days after service of the objections. The 24 parties are advised that failure to file objections within the specified time may waive the right to 25 appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 26 v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 27 28 3 1 2 IT IS SO ORDERED. 3 Dated: 4 5 December 4, 2023 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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