Melendez v. Biter et al

Filing 22

ORDER DENYING 21 Motion to Re-Appoint Counsel without prejudice; ORDERED that Plaintiff shall either (1) Provide Court with (4)Four Copies of his Second Amended Complaint; or (2) Notify the Court in writing of why he is unable to provide copies, signed by Magistrate Judge Barbara A. McAuliffe on 8/14/14. (14-Day Deadline) (Martin-Gill, S)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 9 CAYETANO MELENDEZ, 10 Plaintiff, 11 v. 12 HUNT, et al., 13 Defendants. 14 ) ) ) ) ) ) ) ) ) ) ) 1:13-cv-00279-AWI-BAM (PC) ORDER DENYING PLAINTIFF’S MOTION TO REAPPOINT COUNSEL WITHOUT PREJUDICE (ECF No. 21) FOURTEEN-DAY DEADLINE 15 16 Plaintiff Cayetano Melendez (“Plaintiff”) is a prisoner proceeding in forma pauperis in 17 this civil rights action pursuant to 42 U.S.C. § 1983. On May 19, 2014, the Court appointed 18 voluntary counsel for the limited purpose of drafting an amended complaint. On June 5, 2014, 19 Plaintiff, through his limited appointment counsel, filed his second amended complaint. At that 20 point, the appointment of counsel terminated. 21 On June 6, 2014, the Court screened the complaint pursuant to 28 U.S.C. § 1915A, and 22 found that it stated cognizable claims against: (1) Defendant Hunt for excessive force, inhumane 23 conditions of confinement and deliberate indifference to serious medical needs in violation of the 24 Eighth Amendment; and (2) Defendants Arriola and Cruz for failure to intervene in violation of 25 the Eighth Amendment. The Court instructed the Clerk of the Court to send Plaintiff USM-285 26 forms, summonses, a Notice of Submission of Documents form, an instruction sheet and a copy 27 of the second amended complaint filed June 5, 2014. The Court ordered Plaintiff to complete the 28 Notice of Submission of Documents and submit it to the Court within thirty days, along with 1 1 completed summonses, a USM-285 for each defendant, and four (4) copies of the endorsed 2 second amended complaint filed on June 5, 2014. (ECF No. 16.) 3 On July 28, 2014, Plaintiff submitted his Notice of Submission of Documents, which 4 included three summonses and three completed USM-285 forms. However, Plaintiff failed to 5 submit the required copies of the second amended complaint. (ECF No. 17.) On July 29, 2014, 6 the Court directed Plaintiff to submit four copies of the endorsed second amended complaint. 7 (ECF No. 18.) On August 4, 2014, Plaintiff reported that he twice attempted to mail forms to the 8 Court, including the summons and complaint, without success. Plaintiff also reported that he no 9 longer had copies. (ECF No. 19.) On August 7, 2014, the Court directed the Clerk of the Court 10 to send Plaintiff a copy of the second amended complaint and ordered Plaintiff to submit four 11 copies of the complaint for service. (ECF No. 20.) 12 On August 11, 2014, Plaintiff reported that he received information that the Court never 13 received his USM 285 forms. Plaintiff asserted that the prison was not sending them to the 14 Court. As such, Plaintiff now requests that the Court allow his limited appointment counsel to 15 continue with this case because the prison is losing his paperwork. (ECF No. 21.) 16 The Court has received Plaintiff’s USM 285 forms, but has not received the required 17 copies of his second amended complaint. However, Plaintiff’s reported difficulty with mailing 18 documents does not constitute exceptional circumstances warranting the appointment of counsel. 19 See Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997). Accordingly, Plaintiff’s request to 20 reappoint counsel is HEREBY DENIED without prejudice. 21 Within fourteen (14) days following service of this order, Plaintiff shall either (1) provide 22 the Court with four copies of his second amended complaint; or (2) notify the Court in writing of 23 why he is unable to provide the copies. 24 IT IS SO ORDERED. 25 Dated: /s/ Barbara August 14, 2014 26 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 27 28 2

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