Lopez v. North Kern State Prison et al
Filing
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ORDER adopting 10 FINDINGS AND RECOMMENDATIONS regarding dismissal of certain claims and defendants signed by District Judge Dale A. Drozd on 3/30/2018. (Lundstrom, T)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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RODRIGO LOPEZ,
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No. 1:16-cv-00881-DAD-BAM (PC)
Plaintiff,
v.
NORTHERN KERN STATE PRISON, et
al.,
Defendants.
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ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS REGARDING
DISMISSAL OF CERTAIN CLAIMS AND
DEFENDANTS
(Doc. No. 10)
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Plaintiff Rodrigo Lopez is a state prisoner proceeding pro se and in forma pauperis in this
civil rights action pursuant to 42 U.S.C. § 1983.
On December 21, 2017, the assigned magistrate judge screened plaintiff’s first amended
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complaint and found that plaintiff stated a cognizable Eighth Amendment claim against defendant
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McDermott for the failure to intervene while inmate Cancel was attacking plaintiff. (Doc. No.
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10.) The magistrate judge also issued findings and recommendations that all other claims and
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defendants be dismissed, and that this action proceed only on plaintiff’s Eighth Amendment claim
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against defendant McDermott for the failure to intervene while inmate Cancel was attacking
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plaintiff. (Id.)
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The findings and recommendations were served on all parties appearing in this action and
contained notice that any objections were to be filed within fourteen (14) days after service. (Id.
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at 8.) Following the granting of an extension of time in which to do so, plaintiff filed objections
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on January 29, 2018. (Doc. No. 14.)
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The court has reviewed plaintiff’s objections. Plaintiff contends that under the regulations
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of the California Department of Corrections and Rehabilitation, Warden Pennywell and Secretary
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Kernan should be held liable, along with defendant McDermott, for the injuries plaintiff suffered
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as alleged in the complaint. As discussed in the findings and recommendations, plaintiff’s
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general allegations relate only to these defendants’ supervisory roles, and do not show (even if
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proven) that the defendants themselves violated plaintiff’s constitutional rights. Ashcroft v. Iqbal,
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556 U.S. 662, 676 (2009). None of plaintiff’s remaining arguments advanced in his objections
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provide any legal basis on which to question the magistrate judge’s findings and
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recommendations.
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Plaintiff further seeks appointment of counsel “in the interest of justice and due to the
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seriousness and complexity of this case.” (Doc. No. 14 at 5.) Plaintiff, however, does not have a
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constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525
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(9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998) (en banc),
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and the court cannot require an attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1).
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Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 298 (1989). While the court
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may request the voluntary assistance of counsel in certain exceptional circumstances, Rand, 113
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F.3d at 1525, the court will seek volunteer counsel only in the most serious and exceptional cases
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due to the lack of resources for that purpose.
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The court has considered plaintiff’s motion for the appointment of counsel, but does not
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find the required exceptional circumstances at this time. Plaintiff’s failure to state claims against
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the remaining defendants is not due to any legal complexities here. Plaintiff has been provided
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multiple opportunities and all relevant legal standards to assist him in attempting to state claims
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against the remaining defendants. Furthermore, although the court has determined plaintiff has
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stated claims against defendant McDermott which may proceed, it has not determined that those
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claims have a likelihood of ultimately being successful. In sum, plaintiff’s motion does not
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change the court’s consideration of the magistrate judge’s findings and recommendations.
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a
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de novo review of this case. Having carefully reviewed the entire file, the court finds the findings
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and recommendations to be supported by the record and by proper analysis. Accordingly:
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1. The findings and recommendations issued on December 21, 2017 (Doc. No. 10) are
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adopted in full;
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2. This action shall proceed on plaintiff’s first amended complaint (Doc. No. 9) against
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defendant McDermott for the failure to intervene while inmate Cancel was attacking
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plaintiff, in violation of the Eighth Amendment;
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3. The remaining claims and defendants are dismissed from this action; and
4. This action is referred back to the magistrate judge for proceedings consistent with this
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order.
IT IS SO ORDERED.
Dated:
March 30, 2018
UNITED STATES DISTRICT JUDGE
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