Ricks v. Austria et al
Filing
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ORDER REGARDING Plaintiff's 37 Motion to Amend Pleadings, and Motion for Disposition on Motion for Counsel, signed by Magistrate Judge Barbara A. McAuliffe on 1/13/17. Amended Complaint Due Within Thirty Days. (Marrujo, C)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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SCOTT K. RICKS,
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Plaintiff,
v.
A. AUSTRIA, et al.,
Defendants.
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1:15-cv-01147-AWI-BAM (PC)
ORDER REGARDING PLAINTIFF’S
MOTION TO AMEND PLEADINGS, AND
MOTION FOR DISPOSITION ON MOTION
FOR COUNSEL
(ECF No. 37)
Plaintiff Scott K. Ricks (“Plaintiff”) is a state prisoner proceeding pro se and in forma
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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is related to Ricks v.
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Onyeye, et al., 1:15-cv-1148-AWI-BAM, and Ricks v. Levine, et al., 1:15-cv-1150-AWI-BAM,
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and currently proceeds on Plaintiff’s complaint against Defendant Dr. Austria for deliberate
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indifference to Plaintiff’s serious medical needs in violation of the Eighth Amendment. This
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matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
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Currently before the Court is Plaintiff’s motion to amend pleadings and motion for
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disposition on motion for appointment of counsel, filed December 21, 2016. (ECF No. 37.) The
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time for Defendant to file any opposition to the motion has passed, and none was filed. The
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motion is deemed submitted. Local Rule 230(l).
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Plaintiff first argues that the Court has found that Defendant Austria violated Plaintiff’s
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Eighth Amendment rights, based on its March 17, 2016 complaint finding service of the
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complaint appropriate, and he seeks to amend his pleadings only to seek compensatory damages
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in the amount of $1,000,000, and punitive damages in the same amount. Plaintiff’s complaint
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currently seeks compensatory damages and punitive damages in the amount of $500,000 each.
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(ECF No. 1, p. 15.)
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The Court clarifies for Plaintiff that it has not found Defendant Austria violated his
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Eighth Amendment rights; it only found that Plaintiff stated such a cognizable claim, and that
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service of the complaint was appropriate. Regarding Plaintiff’s request to amend his complaint
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only to increase the amount of damages requested, under the relevant considerations, the Court
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finds that leave should be granted. Plaintiff is granted leave to amend only to increase the
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amount of damages. Leave to amend should be “freely given when justice so requires,” Fed. R.
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Civ. P. 15(a)(2), absent bad faith, undue prejudice, or futility, see Eminence Capital, LLC v.
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Aspeon, Inc., 316 F.3d 1048, 1051-52. Here, should this matter proceed to trial, Defendant
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Austria will have an opportunity to dispute both liability and the amounts and types of damages
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that Plaintiff claims, and thus there is no prejudice to Defendant in allowing the amended figures.
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See Cimino v. Glaze, 228 F.R.D. 169, 174 (W.D.N.Y. 2005) (“[C]ourts have held that an
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amendment increasing the amount of claimed damages should generally be allowed, absent some
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demonstrable prejudice to the defendant.”).
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Next, Plaintiff seeks a ruling on his third, fourth, and fifth motions for the appointment of
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counsel, his motion to file exhibits, and his motion to for a ruling on his motions for counsel.
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Plaintiff also requests again that he be appointed counsel, on the grounds he is unable to afford
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counsel and has no funds to support him in this action. Plaintiff further contends and supplies
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documents showing that he is not receiving all of the paper and writing supplies that he is
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requesting from prison officials. However, the documentation shows that Plaintiff is receiving
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some paper and writing supplies.
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The Court reminds Plaintiff that his third, fourth, and fifth motions for the appointment
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counsel were denied, without prejudice, in orders issued on May 2, 2016, (ECF No. 26) (denying
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third motion for appointment of counsel), and December 6, 2016, (ECF No. 36) (denying fourth
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and fifth motion), respectively. The Court’s December 6, 2016 order also denied Plaintiff’s
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request to file exhibits, stating that the Court cannot serve as a repository for evidence, and such
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evidence should not be submitted until the course of litigation brings the evidence into question
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(such as on a motion for summary judgment, at trial, or when requested by the Court). (Id. at 3.)
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Regarding Plaintiff’s current request for counsel, the Court has considered the relevant
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factors, and does not find that the exceptional circumstances exist for the Court to request the
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voluntary assistance of counsel pursuant to section 1915(e)(1) at this time. See Rand v. Rowland,
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113 F.3d 1520, 1525 (9th Cir. 1997) (determining whether exceptional circumstances exists
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requires the court to consider the likelihood of success on the merits and ability of the pro se
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litigant to articulate his claims). At the present stage of litigation, the Court cannot find any
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likelihood of success on the merits, nor does it find upon a review of the record that Plaintiff
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cannot adequately articulate his claims.
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Accordingly, it is HEREBY ORDERED that:
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Plaintiff’s motion to amend his complaint only to increase the amount of damages
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claimed as explained above, filed December 21, 2016 (ECF No. 37), is
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GRANTED;
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of this order; and
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Plaintiff shall file his amended complaint within 30 days from the date of service
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Plaintiff’s request for the appointment of counsel is DENIED, without prejudice.
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IT IS SO ORDERED.
Dated:
/s/ Barbara
January 13, 2017
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A. McAuliffe
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UNITED STATES MAGISTRATE JUDGE
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