Smith v. Hutchinson et al
Filing
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ORDER DENYING 57 Motion to Appoint Counsel; ORDER DENYING 66 Motion for Reconsideration; ORDER GRANTING 71 Motion for Extension of Time to Oppose Defendants' Motion for Summary Judgment, signed by Magistrate Judge Jeremy D. Peterson on 4/9/19. (Marrujo, C)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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TOY TERRELL SMITH,
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Plaintiff,
v.
ORDER DENYING MOTION TO APPOINT
COUNSEL
ECF No. 57
J. TORRES, et al.,
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Case No. 1:16-cv-01924-LJO-JDP
Defendants.
ORDER DENYING MOTION FOR
RECONSIDERATION
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ECF No. 66
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ORDER GRANTING MOTION FOR
EXTENSION OF TIME TO OPPOSE
DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT
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ECF No. 71
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Plaintiff Toy Terrell Smith is a state prisoner proceeding without counsel in this civil
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rights action brought under 42 U.S.C. § 1983. He has filed three motions that are now before the
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court. We will discuss each in turn.
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I.
Motion to Appoint Counsel
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On December 6, 2019, plaintiff moved for the appointment of counsel. ECF No. 57.
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Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. Rowland,
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113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require that an attorney represent
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plaintiff under 28 U.S.C. § 1915(e)(1), see Mallard v. United States District Court for the
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Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional
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circumstances the court may request the voluntary assistance of counsel under § 1915(e)(1).
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Rand, 113 F.3d at 1525.
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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, “a district court must evaluate both the likelihood of success on
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the merits [and] the ability of the plaintiff to articulate his claims pro se in light of the complexity
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of the legal issues involved.” Id. (internal quotation marks and citations omitted).
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Though plaintiff lacks legal experience and has “bouts of depression, lethargy and the
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inability to function properly at times,” ECF No. 57 at 2, the court finds that plaintiff is able to
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articulate his claims and that the issues in this case are not overly complex. Plaintiff’s request is
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therefore denied without prejudice. Should plaintiff’s claims survive summary judgment,
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plaintiff may renew his motion.
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II.
Motion for Reconsideration
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On September 24, 2018, plaintiff moved for leave to amend his complaint, seeking to add
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two defendants. ECF No. 42. On December 6, 2018, the court, finding that the proposed
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amendment failed to state a claim against either proposed defendant, denied his motion. ECF No.
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56. Nearly two months later, on January 28, 2019, plaintiff filed a “Motion in Opposition to the
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Court’s Order Denying Plaintiff’s Motion for Leave to File Amended Complaint,” ECF No. 66,
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which we construe as a motion for reconsideration.
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Under Local Rule 303(b), rulings by magistrate judges are “final if no reconsideration
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thereof is sought from the Court within fourteen (14) days” of service of the magistrate judge’s
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ruling. Here, the order denying plaintiff’s motion to amend was issued on December 6, 2018, and
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plaintiff’s motion for reconsideration was filed on January 28, 2019, well after the fourteen-day
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limit for seeking reconsideration had expired. Thus, plaintiff’s request for reconsideration is
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denied as untimely.
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III.
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On February 15, 2019, defendants moved for summary judgment. ECF No. 69. Plaintiff
Motion for Extension of Time
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had twenty-one days to oppose defendants’ motion under Local Rule 230(l), but he failed to do
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so.
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On April 4, 2019, plaintiff filed an untimely motion requesting an extension of time. ECF
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No. 71. In it, he explains that he has been unable to respond to defendants’ motion “due to
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circumstances beyond his control.” Id. at 1. Specifically, plaintiff alleges that his law library
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access has been restricted. Id. at 2-3. Thus, he also requests that the “court direct the Warden
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(Custodian) of the California Substance Abuse Treatment Facility to grant and afford plaintiff
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reasonable library access.” Id. at 3.
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The court will grant plaintiff’s request for an extension of time, but the court cannot issue
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directives to the Warden of California Substance Abuse Treatment Facility; we lack the personal
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jurisdiction to do so. Nevertheless, the court is cognizant that plaintiff’s ability to access the law
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library may impact his ability to litigate this action in a timely and effective manner.
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Accordingly, the court will request the assistance of the Litigation Coordinator at California
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Substance Abuse Treatment Facility in ensuring that plaintiff is afforded adequate opportunities
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to access the law library, to the extent doing so is consistent with institutional order and security.
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See Whitley v. Albers, 475 U.S. 312, 321-322 (1986) (“Prison administrators . . . should be
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accorded wide-ranging deference in the adoption and execution of policies and practices that in
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their judgment are needed to preserve internal order and discipline and to maintain institutional
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security.” (internal quotation omitted)). The clerk’s office will be directed to serve a copy of this
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order on the Litigation Coordinator.
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IV.
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Accordingly,
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1. Plaintiff’s motion for the appointment of counsel, ECF No. 57, is denied.
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2. Plaintiff’s motion for reconsideration, ECF No. 66, is denied.
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3. Plaintiff’s motion for an extension of time and order directing the warden to grant
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Order
library access, ECF No. 71, is partially granted:
a. Plaintiff must respond to defendants’ motion for summary judgment, ECF No.
69, within thirty days of this order.
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b. The clerk’s office shall serve a copy of this document on the Litigation
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Coordinator at California Substance Abuse Treatment Facility.
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c. The Litigation Coordinator’s assistance is requested in facilitating plaintiff’s
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meaningful access to the law library.
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4. Failure to comply with this order may result in dismissal of this action.
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IT IS SO ORDERED.
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Dated:
April 9, 2019
UNITED STATES MAGISTRATE JUDGE
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