Mwasi v. Corcoran State Prison

Filing 92

ORDER Withdrawing 87 FINDINGS AND RECOMMENDATIONS to Grant Defendants' Motion for Summary Judgment; Granting 88 Motion for Extension to File Opposition Nunc Pro Tunc; and Denying Plaintiff's 90 Motion to Appoint Counsel signed by Magistrate Judge Jennifer L. Thurston on 09/14/2017. Response Due 11/17/2017.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:13-cv-00695-DAD-JLT (PC)

KING MWASI,
Plaintiff,
v.
CORCORAN STATE PRISON, et al
Defendant.

ORDER WITHDRAWING FINDINGS AND
RECOMMENDATION TO GRANT
DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT; GRANTING EXTENSION OF TIME
TO FILE OPPOSITION NUNC PRO TUNC; AND
DENYING PLAINTIFF’S REQUEST FOR
APPOINTMENT OF COUNSEL

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(Docs. 87, 88, 90, 91)

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60-DAY DEADLINE

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On May 30, 2017, Defendants filed a motion for summary judgment contending that

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Plaintiff violated 42 U.S.C. § 1997e(a) because he failed to exhaust the available administrative

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remedies prior to filing this suit. (Doc. 83.) Despite lapse of more than a month beyond the

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allowed time, Plaintiff filed neither an opposition, nor a statement of opposition to Defendants’

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motion. Thus, on August 17, 2017, the Court issued Findings and Recommendations grant

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Defendants’ motion. (Doc. 87.)

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On August 28, 2017, Plaintiff filed a motion seeking a 60-day extension of time to file an

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opposition to Defendants’ motion. (Doc. 88.) On September 11, 2017, Plaintiff filed a motion to

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appoint counsel as well as a motion to rescind the F&R or stay the action as well as a motion to

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allow him to file an opposition to Defendants’ motion. (Docs. 90, 91.) Plaintiff contends in both
his motion for an extension of time and to rescind the F&R that he gave Defendants’ motion and
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exhibit A to another inmate who was going to help Plaintiff prepare an opposition. (Docs. 88,

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91.) However, the other inmates’ folder, which contained Plaintiff’s copy of the motion and

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exhibit A, was stolen. Plaintiff has also been attempting to gain access to his boxes of legal

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materials to no avail and has been experiencing difficulties with mailing correspondence out of

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CSP.

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Plaintiff’s most recent motion shows that, after receipt of Defendants’ motion, Plaintiff

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attempted to gain access to his boxes of legal property which are stored at R&R, but that as of

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June 26, 2017, he had not been able to do so. Thus, on that date he filed a Form 22 hoping to gain

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access (Doc. 91, p. 7) and, though not received and filed, Plaintiff also sent a request for an

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extension of time as well as a motion to appoint counsel to this court (Doc. 88, p. 1). On July 23,

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2017, Plaintiff submitted another Form 22 requesting access to his legal boxes. (Doc. 91, p. 8.)

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On August 18, 2017,1 Plaintiff was finally escorted to R&R and was allowed 2 hours to review

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and exchange his legal materials. (Id., p. 10.)

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On August 24, 2017, another Form 22 from Plaintiff was forwarded by U.S. Mail to the

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mailroom supervisor, in which Plaintiff requested a copy of the legal mail log for June 26, 2017

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since he had not received any response from the court or defense counsel to his June 16, 2017

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motions and correspondence. (Doc. 91. p. 12.)
On August 27, 2017, Plaintiff submitted a Form 22 indicating that (apparently when he

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reviewed them on August 18th) his legal materials were all mixed up and that he needed further

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access to finish sorting through his documents to be able to comply with court deadlines. (Id., p.

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11.) That same date, Plaintiff submitted another Form 22 requesting copies of documents which

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he was afraid would be lost if he sent them via institutional mail, in which Plaintiff noted that

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neither the court nor defense counsel had received correspondence he recently sent. (Id., p. 6.)

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The law librarian responded to Plaintiff’s request on August 31, 2017, by indicating that she was

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out of some supplies, but that she would come to see Plaintiff at his cell if she was unable to get

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him to the library on “Friday or Monday.” (Id.)

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This is a typed 128 B General Chrono form. Though this form notes that Plaintiff was escorted to R&R and
allowed to review and exchange his legal materials for two hours on August 18, 2017, the form itself is dated a year
earlier, on August 18, 2016. (See Doc. 91, p. 10.)

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Finally, Plaintiff submitted a Form 22 that he submitted earlier this month, concerning

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problems he has experienced with his outgoing legal mail. (Id., p. 13.) On that form, prison staff

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confirms that “on several occasions legal mail that Mwasi sent out days prior would be returned

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without leaving facility for unknown reasons. We on 3W show him and remail.” (Id.)

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The combination of these circumstances provide good cause to vacate the F&R and grant

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Plaintiff an extension of time to file an opposition or statement of non-opposition to Defendants’

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motion for summary judgment. Though copies of documents are not usually provided for parties,

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this once the Court will make an exception and will direct the Clerk’s Office to send Plaintiff a

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copy of Defendants’ points and authorities, statement of undisputed facts, and the declaration of

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Goree which was stolen from the inmate who intended to assist Plaintiff.
However, Plaintiff does not have a constitutional right to appointed counsel in this action,

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Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an attorney

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to represent Plaintiff pursuant to 28 U.S.C. ' 1915(e)(1). Mallard v. United States District Court

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for the Southern District of Iowa, 490 U.S. 296, 298 (1989). In certain exceptional

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circumstances, which are not present here, the Court may request the voluntary assistance of

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counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.
Without a reasonable method of securing and compensating counsel, the Court will seek

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volunteer counsel only in the most serious and exceptional cases. In determining whether

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“exceptional circumstances exist, the district court must evaluate both the likelihood of success of

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the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the

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complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted).
In the present case, the Court does not find the required exceptional circumstances. Even

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if it is assumed that Plaintiff is not well versed in the law and that he has made serious allegations

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which, if proved, would entitle him to relief, his case is not exceptional. This Court is faced with

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similar cases almost daily. Further, at this early stage in the proceedings, the Court cannot make

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a determination that Plaintiff is likely to succeed on the merits and, based on a review of the

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record in this case, the Court does not find that Plaintiff cannot adequately articulate his claims.

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Id.
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Accordingly, the Court ORDERS:

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1.

Plaintiff’s motion, filed on September 11, 2017 (Doc. 91), to rescind the Findings

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and Recommendations to grant Defendants’ motion for summary judgment is

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GRANTED;

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2.

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The Findings and Recommendations to grant Defendants’ motion for summary
judgment, issued on August 17, 2017 (Doc. 87), are VACATED;

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Plaintiff’s motion for an extension of time to file an opposition or statement of

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non-opposition to Defendants’ motion for summary judgment, filed August 28,

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2017 (Doc. 88), is granted nunc pro tunc and he shall do so within 60 days of the

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date of service of this order, failure to comply will result in reinstatement of the

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August 17, 2017 Findings and Recommendations;

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4.

is DENIED without prejudice; and

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Plaintiff’s motion for appointment of counsel, filed September 11, 2017 (Doc. 90),

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The Clerk’s Office is directed to forward copies of Defendants’ motion for

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summary judgment (Doc. 83), points and authorities (Doc. 83-1), statement of

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undisputed facts (Doc. 83-2), and the declaration of Goree (Doc. 83-4) as well as

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another copy of the Second Informational Order that issued on June 1, 2017 (Doc.

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85) to Plaintiff along with service of this order.

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IT IS SO ORDERED.
Dated:

September 14, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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