Kivalu v. Northcentral University

1 WO 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA Taniela F. Kivalu, ) No. CV-21-00379-PHX-SPL ) ) 10 Plaintiff, ) ORDER vs. ) ) ) Northcentral University, et al., ) ) 13 Defendants. ) ) 14 ) 15 Before the Court is Plaintiff’s “Motion to Stay Complaint, Motion for Extension of Time to Cure Failure to State Claim, Motion to Stay ECF Filing, Motion Court Assign Attorney to Help Plaintiff [sic].” (Doc. 14) The Motion will be granted in part and denied in part.

19 Pro se Plaintiff Taniela Kivalu filed a Complaint on March 4, 2021 against Defendants Northcentral University and individual members of the Board of Trustees.

21 (Doc. 1) Plaintiff also sought leave to proceed in forma pauperis. (Doc. 2) The Court granted leave to proceed in forma pauperis but dismissed the Complaint with leave to refile by May 24, 2021 pursuant to 28 U.S.C. § 1915(e)(2) because the Complaint failed to state a claim under Fed. R. Civ. P. 8. (Doc. 13 at 2, 5) The Court directed the Clerk of Court to dismiss the action if Plaintiff did not timely file an amended complaint. (Doc. 13 at 6) The Court also denied Plaintiff leave to file electronically, because Plaintiff did not show he possesses the ability to properly file and docket matters. (Doc. 13 at 5) 28 Plaintiff now asks the Court to stay his Complaint and the ECF filing. (Doc. 14 at 4) Neither of those requests are something the Court can do.

2 Plaintiff also asks the Court to grant a 30-day extension for him to file an Amended Complaint. (Doc. 14 at 5) Plaintiff asks for an extension in part because he is scheduled to meet with the Federal Court Advice-Only clinic on May 27, 2021, after the deadline to file, and because he requires more time due to his alleged disability. (Doc. 14 at 4–5) The Court has not yet held a scheduling conference or issued a scheduling order in this case. Finding no undue burden or prejudice due to delay, the extension will be granted.

9 Next, Plaintiff asks the Court to appoint him an attorney. (Doc. 14 at 7) Under 28 U.S.C § 1915(e)(1) the Court may request an attorney to represent indigent civil litigants “under exceptional circumstances.” Hobson v. McDonald, No. CV-16-02545-PHX-ESW, 2016 WL 4940302, at *1 (D. Ariz. Sept. 14, 2016) (quoting Palmer v. Valdez, 560 F.3d 13 965, 970 (9th Cir. 2009) (internal quotations omitted)). “When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues involved.’” Id. Because Plaintiff has not yet filed an amended complaint the Court is unable to evaluate his likelihood of success on the merits. Based on the first complaint, Plaintiff has not demonstrated a likelihood of success on the merits. His ability to articulate his claims pro se in light of the complexity of the legal issues involved is also difficult to evaluate because the precise legal issues are currently unclear. Because the Court cannot determine if the circumstances are exceptional, it will not appoint counsel for Plaintiff.

23 Finally, Plaintiff requests the Court serve all listed Defendants with his summons and Complaint. (Doc. 14 at 7) Pursuant to its April 26, 2021 Order, the amended complaint will not be served until it is filed and screened pursuant to 28 U.S.C § 1915(e)(2).

27 For the foregoing reasons, 28 IT IS ORDERED that the Motion to Stay Complaint, Motion for Extension of Time to Cure Failure to State Claim, Motion to Stay ECF Filing, Motion Court Assign 2| Attorney to Help Plaintiff [sic].” (Doc. 14) is granted in part and denied in part as follows: 4 1. The Motions to Stay are denied.

5 2. The Motion for Extension of Time is granted. Plaintiff is granted leave to file an 6 amended complaint in accordance with this Order no later than June 25, 2021.

7 The amended complaint may not be served until and unless the Court screens it 8 pursuant to 18 U.S.C. § 1915(e)(2).

9 3. The Motion to Assign an Attorney is denied.

10 4. The request to serve all listed Defendants is denied as untimely.

11 Dated this 25th day of May, 2021.

12 DK A 13 Honorable feven P. Légan 14 United States District Jadge