(PC) Felder v. Henson et al

Filing 54

ORDER ADOPTING #45 FINDINGS AND RECOMMENDATION FOR PLAINTIFF TO PROCEED ON COGNIZABLE CLAIMS IN THE SECOND AMENDED COMPLAINT #41 ; DEFENDANTS STARR, HENSON, DR. STOCKWELL, AND DR. LAKSHIMI AND ALL CLAIMS AGAINST THEM ARE DISMISSED AND DENYING PLAINTIFF'S #50 MOTION TO AMEND AND CONSOLIDATE signed by District Judge Anthony W. Ishii on 11/14/2016. (Lundstrom, T)

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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-01622-AWI-JLT (PC)

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ANTHONY E. FELDER,
Plaintiff,

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v.

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HENSON, et al.,
Defendants.

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ORDER ADOPTING FINDINGS AND
RECOMMENDATION FOR PLAINTIFF TO
PROCEED ON COGNIZABLE CLAIMS IN THE
SECOND AMENDED COMPLAINT AND
DEFENDANTS STARR, HENSON, DR.
STOCKWELL, AND DR. LAKSHIMI AND ALL
CLAIMS AGAINST THEM ARE DISMISSED
AND DENYING PLAINTIFF’S MOTION TO
AMEND AND CONSOLIDATE
(Doc. 41, 45, 50)

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Plaintiff, Anthony E. Felder, is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action under 42 U.S.C. § 1983 which he filed on October 9, 2013. The matter was
referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule
302.
On March 11, 2016, the Magistrate Judge filed a Findings and Recommendation upon
screening Plaintiff’s Second Amended Complaint that Plaintiff should be allowed to proceed on
his cognizable claims of excessive force under the Eighth Amendment against Defendants
Amaro, Kuckenbaker, Kruse, Hill, Morgan, Villalba, and Gibson, and for involuntary sedation in
violation of the Fourteenth Amendment and forced rectal extraction of contraband in violation of
the Fourth Amendment against those Defendants as well as Dr. McLoughlin and Dr. Narayan and
that all other Defendants and claims should be dismissed. (Doc. 45.) The Findings and
Recommendation was served on Plaintiff that day and contained notice that objections to the
Findings and Recommendations were to be filed within thirty days. Plaintiff filed objections on

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May 16, 2016 in which he cites Knapps v. City of Oakland , 647 F.Supp.2d 1129 (N.D. Cal.
2009) and states that “a party injured by an unjustified assault may recover damages not only
from actual assailant, but from any other person who aids, abets, counsels, or encourages the
assault.” (Doc. 47.)
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a
de novo review of this case. Having carefully reviewed the entire file, the Court finds the
Findings and Recommendations to be supported by the record and by proper analysis.
Further, on October 28, 2016, Plaintiff filed a document titled “Motion to Amend Petition
to Consolidate.” (Doc. 50.) However, in the body of this document, Plaintiff does not state
anything about amending his pleading, nor about what he seeks to consolidate. (Id.) Rather,
Plaintiff indicates that, despite being transferred to High Desert State Prison back in July, he has
only just recently received his legal property, he received notice of the change of defense counsel,
and he desires appointment of counsel. (Id.)
Plaintiff fails to present new facts justifying his request to amend, Bonin v. Calderon, 59
F.3d 815, 845 (9th Cir. 1995); see also Allen v. City of Beverly Hills, 911 F.2d 367, 374 (9th Cir.
1990), and allowing further amendment in a case that is already over three years old and where
Plaintiff has already had multiple opportunities to amend, would only serve to create undue delay,
Foman v. Davis, 371 U.S. 178, 182 (1962); Loehr v. Ventura County Community College Dist.,
743 F.2d 1310, 1319 (9th Cir. 1984).
Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.
Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an attorney to
represent Plaintiff pursuant to 28 U.S.C. §1915(e)(1). Mallard v. United States District Court for
the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in
certain exceptional circumstances the court may request the voluntary assistance of 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
volunteer counsel for Plaintiff, though no attorneys have volunteered at this time. Thus, at this

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time, Plaintiff’s motion must be denied. If the Court received a response from an attorney who is
interested in representing counsel, appointment will be made.
Accordingly, IT IS HEREBY ORDERED that:
1.

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The Findings and Recommendations, that issued on March 11, 2016, is adopted in
full; and

2.

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Plaintiff may proceed on the following cognizable claims as stated in the Second
Amended Complaint:

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a.

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Defendants Amaro, Kuckenbaker, Kruse, Hill, Morgan, Villalba, Gibson,

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Dr. McLoughlin, and Dr. Narayan based on the events surrounding the

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forced extraction of contraband from Plaintiff’s rectal cavity;

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b.

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Gibson; and

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c.

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Hill, Morgan, Villalba, Gibson, Dr. McLoughlin, and Dr. Narayan; and
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All other claims and Defendants are dismissed with prejudice;

4.

Plaintiff’s motion to amend and to consolidate, filed on October 28, 2016 (Doc.

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for involuntary sedation in violation of the Due Process Clause of the
Fourteenth Amendment against Defendants Amaro, Kuckenbaker, Kruse,

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for excessive force in violation of the Eighth Amendment against
Defendants Amaro, Kuckenbaker, Kruse, Hill, Morgan, Villalba, and

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for violation of his rights under the Fourth Amendment against

50), is DENIED; and
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The action is referred to the Magistrate Judge for service of process.

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IT IS SO ORDERED.

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Dated: November 14, 2016

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SENIOR DISTRICT JUDGE

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