Green v. Scally

2 DISTRICT OF NEVADA [3] TAELOR GREEN, Case No. 2:23-cv-00244-JAD-VCF [4] Plaintiff, ORDER 5 v. (ECF Nos. 9, 10) 6 JAMES SCALLY, et al., 7 Defendants. [8] 9 On September 1, 2023, the Court screened plaintiff Taelor Green’s civil-rights 10 complaint, allowing some claims to proceed, dismissing one claim with prejudice, and 11 dismissing the remaining claims with leave to amend by October 2, 2023. (ECF No. 8). 12 Two days after the deadline to file a first amended complaint expired, Green filed a 13 declaration stating that pages 64, 75, 77, and 79 of his original complaint, which the Court 14 sent him a courtesy copy of with the screening order, were “blank.” (ECF No. 9). Green 15 argues that these blank pages are evidence that either the prison’s law library or this 16 Court is “deliberately hindering [his] civil litigation[,]” and he asks for more time to file his 17 first amended complaint. (Id.) Green also moves the Court to find and appoint him a free 18 attorney, arguing that incarceration makes prosecuting a claim difficult, and he has limited 19 access to the law library. (ECF No. 10). For the reasons discussed below, the Court 20 grants Green an extension of time to file a first amended complaint, and it denies without 21 prejudice Green’s motion for the appointment of counsel. 22 I. DISCUSSION 23 The “blank” pages that Green complains about are exhibits to his original 24 complaint. (Compare ECF No. 9 at 3–6, with ECF No. 8-1 at 64, 75, 77, 79, and ECF 25 No. 8-1 at 64, 75, 77, 79). Green does not identify a single document that he believes is 26 missing from his original complaint or the courtesy copy of it. Green also fails to explain 27 how these “blank” exhibit pages prevented him from timely filing a first amended 28 complaint. 2 courtesy copy that the Court sent him with its screening order. Green mailed his original 3 complaint and exhibits to the Court. (See ECF No. 1-1 at 87). The Clerk of the Court’s 4 office has reviewed Green’s original submission and confirmed that the “blank” pages are 5 simply the other side of pages that the Court scanned double-sided. Despite Green’s 6 inartful arguments, he has not significantly delayed these proceedings, so the Court 7 grants Green a one-time extension of time to file his first amended complaint. 8 As for Green’s motion for the appointment of counsel, as the Court explained in 9 the screening order, it may appoint counsel for indigent civil litigants only under 10 “exceptional circumstances.” (ECF No. 8 at 24–25). In determining whether exceptional 11 circumstances exist, a court must consider the likelihood of success on the merits as well 12 as the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 13 legal issues involved.” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (internal 14 quotation omitted). The Court recognizes that Green is disadvantaged because he is 15 incarcerated and has limited access to the law library. But Green’s circumstances “are 16 hardly extraordinary given the vicissitudes of prison life[.]” See Chafer v. Prosper, 592 17 F.3d 1046, 1049 (9th Cir. 2010) (explaining facts that prisoner was pro se, the prison was 18 “missing a handful of reporter volumes,” and the plaintiff was reliant “on helpers who were 19 transferred or too busy to attend to his petitions” were not extraordinary circumstances). 20 Moreover, the matters at issue in this action are not particularly complex, Green’s 21 circumstances have not rendered him unable to articulate the basis of his claims to the 22 Court, and the slim record here simply does not support a finding that Green is likely to 23 succeed on the merits of any claim. The Court thus denies Green’s motion for the 24 appointment of counsel. Should this action progress and Green’s circumstances change 25 such that he is able to demonstrate that they are exceptional, then Green may renew his 26 motion. [28] |) Ul. CONCLUSION 2 It is therefore ordered that Green’s declaration (ECF No. 9) is construed as a 3 || motion to extend the deadline for him to file a first amended complaint and granted to that 4 || narrow extent. 5 It is further ordered that on or before November 13, 2023, Green must file a first 6 || amended complaint consistent with the Court’s September 1, 2023, screening order (ECF 7 || No. 8). 8 If Green does not file a first amended complaint by November 13, 2023, this action 9 || will proceed immediately on only the Eighth Amendment excessive-force claim and the 10 || Eighth Amendment medical-indifference claim about the walking, speech, and suicidal 11 || ideation conditions. 12 It is further ordered that Green’s motion for the appointment of counsel (ECF 13 || No. 10) is denied without prejudice. 14 DATED THIS 13th day of October 2023. 7 UNITED STATES MAGISTRATE JUDGE