Opinion
No. C02-5575DB
January 29, 2003
ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL AND DIRECTING PLAINTIFF FILE AN AMENDED COMPLAINT
This Civil Rights action has been referred to the undersigned Magistrate Judge pursuant to Title 28 U.S.C. § 636(b)(1)(B). Plaintiff has been granted in forma pauperis status. (Dkt. #3).
Plaintiff originally named the Clallam Bay Correction Center and the Superintendent of the facility as defendants. (Dkt. #4). He alleged that these two "people" are responsible for hiring a Doctor who plaintiff claims is unprofessional. (Dkt. #4 page 3). Originally plaintiff failed to provide any operativc facts, (Dkt. #4 page 4). He was ordered to file an amended complaint and has done so. The amended complaint names no "person", only the Clallam Bay Corrections Center medical department. (Dkt. #6). The complaint alleges that a Doctor is not treating the Plaintiff with medication pertaining to the "sexual orgasm system". (Dkt. #6). The complaint also alleges that the Doctor caressed the plaintiff's leg. Plaintiff claims an Eighth Amendment violation. (Dkt. #6).
In order to state a claim under 42 U.S.C. § 1983, a complaint must allege that (1) the conduct complained of was committed by a person acting under color of state law and that (2) the conduct deprived a person of a right, privilege, or immunity secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986). Section 1983 is the appropriate avenue to remedy an alleged wrong only if both of these elements are present. Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985), cert. denied, 478 U.S. 1020 (1986).
The amended complaint, (Dkt. #6), fails to name a person as a defendant. Pro Se complaints are liberally construed, but the Court cannot supply facts that a plaintiff has failed to allege. Pena v. Gardner, 976 F.2d 469 (9th Cir. 1992).
The plaintiff was ORDERED to file an second amended complaint curing the defects in his amend complaint by January 24th, 2003. Plaintiff was instructed to include service copies of the complaint and was informed that failure to file an amended complaint would result in a Report and Recommendation that this action be dismissed for failure to state a claim. (Dkt. #7).
Rather than complying with the Court's Order plaintiff filed a motion asking for appointment of counsel. (Dkt. #8). There is no right to have counsel appointed in cases brought under 42 U.S.C. § 1983. Although the court, under 28 U.S.C. § 1915(d), can request counsel to represent a party proceeding in forma pauperis, the court may do so only in exceptional circumstances. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984); Aldabe v. Aldabe, 616 F.2d 1089 (9th Cir. 1980). 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. Wilborn, 789 F.2d at 1331.
It may be possible for plaintiff to file a complaint that states a cause of action against the Doctor in question. Plaintiff has failed to name the Doctor as a defendant and has not shown a likelihood of success on the merits. The motion for appointment of counsel is DENIED.
Plaintiff is Ordered to file an amended complaint that complies with the Court's January 2d 2003 Order by February 14th, 2003. Plaintiff is warned that failure to comply will result in a Recommendation that this action be dismissed.
The clerk is directed to send a copy of this order to plaintiff and to note the due date for the Amended Complaint as February 14th, 2003.