Thomas v. Andrews et al

Filing 33

ORDER Striking Unsigned 31 Amended Complaint; ORDER Directing Clerk of the Court to Send Plaintiff Copy of Amended Complaint for Signing; ORDER Denying Plaintiff's 21 Motion to Appoint Counsel with Prejudice; ORDER Striking 22 Motion to Stay as Unsigned; ORDER Disregarding 26 Motion to Dismiss Federal Defendants signed by Magistrate Judge Dennis L. Beck on 03/02/2011. Amended Complaint due by 4/5/2011. (Attachments: # 1 First Amended Complaint)(Flores, E)

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(PC) Thomas v. Andrews et al Doc. 33 1 2 3 4 5 6 7 8 RODNEY B. THOMAS, 9 Plaintiff, 10 v. 11 WARDEN ANDREWS, et al., 12 Defendants. 13 14 15 16 17 / 18 19 Plaintiff Rodney B. Thomas ("Plaintiff") is a federal prisoner proceeding pro se and in ORDER DISREGARDING MOTION TO DISMISS FEDERAL DEFENDANTS (DOC. 26) ORDER DENYING PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL WITHOUT PREJUDICE (DOC. 21) ORDER STRIKING MOTION TO STAY AS UNSIGNED (DOC. 22) ORDER DIRECTING CLERK OF THE COURT TO SEND PLAINTIFF COPY OF AMENDED COMPLAINT FOR SIGNING ORDER STRIKING UNSIGNED AMENDED COMPLAINT (DOC. 31) CASE NO. 1:09-CV-01593-DLB PC UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA 20 forma pauperis in this civil rights action pursuant to Bivens v. Six Unknown Fed. Narcotics 21 Agents, 403 U.S. 388 (1971), which provides a remedy for civil rights violations by federal 22 actors. Pending before the Court are 1) Plaintiff's motion for appointment of counsel, filed June 23 30, 2010; 2) Plaintiff's motion to stay, filed July 23, 2010; and 3) Plaintiff's motion to dismiss 24 federal defendants. The Court however will first address Plaintiff's amended complaint, filed 25 October 25, 2010. 26 I. 27 Unsigned Amended Complaint Plaintiff's amended complaint, filed October 25, 2010, is unsigned. Doc. 31. The Court 28 cannot consider unsigned filings. Fed. R. Civ. P. 11(a). Accordingly, the Court will strike 1 1 Plaintiff's amended complaint. The Court will direct the Clerk of the Court to send Plaintiff a 2 copy of his amended complaint for him to sign. Plaintiff will be granted thirty days in which to 3 return his signed amended complaint. 4 II. 5 Motion For Appointment Of Counsel Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 6 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to 7 represent plaintiff pursuant to 28 U.S.C. 1915(e)(1). Mallard v. United States District Court 8 for the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional 9 circumstances the court may request the voluntary assistance of counsel pursuant to section 10 1915(e)(1). Rand, 113 F.3d at 1525. 11 Without a reasonable method of securing and compensating counsel, the court will seek 12 volunteer counsel only in the most serious and exceptional cases. In determining whether 13 "exceptional circumstances exist, the district court must evaluate both the likelihood of success 14 of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 15 complexity of the legal issues involved." Id. (internal quotation marks and citations omitted). 16 In the present case, the court does not find the required exceptional circumstances. Even 17 if it is assumed that plaintiff is not well versed in the law and that he has made serious allegations 18 which, if proved, would entitle him to relief, his case is not exceptional. At this early stage in the 19 proceedings, the court cannot make a determination that plaintiff is likely to succeed on the 20 merits. Id. There is also no proper complaint before the Court, as Plaintiff's amended complaint 21 is unsigned. 22 23 III. 24 For the foregoing reasons, the Court will deny Plaintiff's motion, without prejudice. Motion To Stay On July 23, 2010, Plaintiff filed a motion requesting a stay of the action while Plaintiff is 25 being transferred. Doc. 22. Plaintiff contends that he is blind and requires assistance in reading 26 and writing. However, this motion is unsigned. As stated previously, the Court cannot consider 27 unsigned filings. Fed. R. Civ. P. 11(a). Additionally, Plaintiff's motion is now moot, as Plaintiff 28 has subsequently filed several documents with the Court. Accordingly, the Court will strike 2 1 Plaintiff's motion to stay. 2 IV. 3 Motion To Dismiss Federal Defendants On September 20, 2010, Plaintiff filed a motion to dismiss federal defendants from this 4 action. Plaintiff's amended complaint names several prison officials at Taft Correctional 5 Institution, which is a privately-owned facility that contracts with the federal government. 6 Plaintiff requests dismissal of the United States and all its employees and agencies. However, 7 the United States has not appeared in this action. Thus, Plaintiff's motion will be disregarded. 8 V. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 3b142a 24 25 26 27 28 3 5. 6. 4. 3. 2. Conclusion And Order Based on the foregoing, it is HEREBY ORDERED that: 1. Plaintiff's amended complaint, filed October 25, 2010, is STRICKEN as unsigned; The Clerk of the Court is directed to send Plaintiff a copy of his amended complaint for signing and return; Plaintiff is to file his signed amended complaint within thirty (30) days from the date of service of this order. Failure to comply with this deadline may result in dismissal of this action; Plaintiff's motion for appointment of counsel, filed June 30, 2010, is DENIED without prejudice; Plaintiff's motion to stay, filed July 23, 2010, is STRICKEN as unsigned; and Plaintiff's motion to dismiss federal defendants, filed September 20, 2010, is DISREGARDED. IT IS SO ORDERED. Dated: March 2, 2011 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE

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