Dillingham v. Garcia et al

Filing 21

ORDER Adopting 17 FINDINGS AND RECOMMENDATIONS and DENYING Motions signed by Chief Judge Lawrence J. O'Neill on 1/10/2019. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JERRY DILLINGHAM,

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Plaintiff,
v.
F. GARCIA, et al.,

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Case No. 1:18-cv-00579-LJO-EPG (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DENYING
MOTIONS
(ECF NOS. 1, 16, 17, 18, & 19)

Defendants.

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Jerry Dillingham (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983. The matter was

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referred to a United States magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local

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Rule 302.

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On November 28, 2018, Magistrate Judge Erica P. Grosjean entered findings and

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recommendations, recommending that “[t]his case proceed on Plaintiff’s claims against

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Defendant Garcia for conspiracy, retaliation in violation of the First Amendment, and excessive

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force and failure to protect in violation of the Eighth Amendment,” and that “[a]ll other claims

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and defendants be dismissed.” (ECF No. 17, p. 14).

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Plaintiff was provided an opportunity to file objections to the findings and

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recommendations. Plaintiff filed objections to Judge Grosjean’s screening order and findings

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and recommendations (ECF Nos. 16 & 20), as well as a motion for extension of time to file an

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amended complaint (ECF No. 18),1 motions for appointment of counsel and a guardian ad

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lidem (ECF No. 16 p. 8; ECF No. 19), and an amended complaint (ECF No. 20, pgs. 6-104).

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 304, this

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Court has conducted a de novo review of this case. Having carefully reviewed the entire file,

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the Court finds the findings and recommendations to be supported by the record and proper

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analysis.

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As to Plaintiff’s motion for extension of time, motions for appointment of counsel, and
motion for appointment of a guardian ad lidem, they will all be denied.
Plaintiff’s motions for appointment of counsel will be denied because, while Plaintiff

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alleges that he cannot adequately articulate his claims or prosecute this case, his current

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complaint (which was allegedly drafted with the assistance of another inmate) appears to

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adequately describe the claims Plaintiff is attempting to assert. Moreover, the Court has

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reviewed the record in this case, and at this time the Court cannot make a determination that

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Plaintiff is likely to succeed on the merits of his claims. Plaintiff is advised that he is not

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precluded from renewing his motion for appointment of pro bono counsel at a later stage of the

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proceedings

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Plaintiff’s motion for appointment of a guardian ad litem will be denied without

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prejudice because appointment of a guardian ad lidem is not necessary to protect Plaintiff’s

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interests in this action at this time. Under Federal Rule of Civil Procedure 17(c)(2), “[t]he court

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must appoint a guardian ad litem—or issue another appropriate order—to protect a minor or

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incompetent person who is unrepresented in an action.” “Although the court has broad

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discretion and need not appoint a guardian ad litem if it determines the person is or can be

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otherwise adequately protected, it is under a legal obligation to consider whether the person is

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adequately protected.” United States v. 30.64 Acres of Land, More or Less, Situated in

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Klickitat Cty., State of Wash., 795 F.2d 796, 805 (9th Cir. 1986). If an “incompetent person is

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In Plaintiff’s motion for extension of time, Plaintiff asks the Court to send him a copy of the motion
(because he was unable to make a copy). (ECF No. 18, p. 4). This request will be denied. The Court does not
generally provide free copies of documents to parties. Moreover, it does not appear that Plaintiff needs a copy of
the motion in order to prosecute this case.
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unrepresented, the court should not enter a judgment which operates as a judgment on the

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merits without complying with Rule 17(c).” Krain v. Smallwood, 880 F.2d 1119, 1121 (9th

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Cir. 1989).

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Here, Plaintiff has not submitted substantial evidence of incompetence. At most,

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Plaintiff’s evidence shows that he has a low TABE score, and that he is in the disability

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placement program. Additionally, Plaintiff appears to be able to adequately describe the claims

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he is attempting to assert, although Plaintiff allegedly received assistance. He has also filed

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objections to Judge Grosjean’s findings and recommendations (which include case cites), and

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timely filed a motion for an extension of time.

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Moreover, at this time, Plaintiff’s interests are adequately protected. All claims and

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defendants being dismissed will be dismissed without prejudice. This protects Plaintiff’s

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interests while also allowing the case to proceed.2

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The Court notes that Plaintiff may renew his motion for appointment of a guardian ad

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litem at a later stage in the proceedings. At that time the Court may hold a hearing to determine

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if a guardian ad lidem should be appointed. Krain, 880 F.2d at 1121 (“The preferred procedure

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when a substantial question exists regarding the mental competence of a party proceeding pro

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se is for the district court to conduct a hearing to determine whether or not the party is

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competent, so that a representative may be appointed if needed.”).

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As to Plaintiff’s motion for extension of time to file a first amended complaint, it will

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be denied, and the Court will not consider Plaintiff’s First Amended Complaint (which Plaintiff

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filed without permission). To begin, Plaintiff did not file timely file his motion for extension of

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time. On September 7, 2018, the Court gave Plaintiff thirty days to file an amended complaint,

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if he so chose. (ECF No. 12). Even after being granted a thirty-day extension of time (ECF

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No. 15), Plaintiff’s second request for an extension of time was still over a month late, and

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Plaintiff did not adequately explain why he did not timely file his second request for an

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extension of time. Moreover, the Court has reviewed Plaintiff’s proposed first amended

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Note that Judge Grosjean will consider appointing counsel for the limited purpose of assisting Plaintiff
at a settlement conference at the appropriate time.
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complaint, and it appears to suffer from most of the same defects as the original complaint.
While the Court is denying Plaintiff’s motion for extension of time, the Court notes that

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Plaintiff is not precluded from filing a motion for leave to file an amended complaint at a later

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time.

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Accordingly, based on the foregoing, THE COURT HEREBY ORDERS that:

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1.

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The findings and recommendations issued by the magistrate judge on November
28, 2018, are ADOPTED in full;

2.

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This action proceed on Plaintiff’s original complaint (ECF No. 1), on Plaintiff’s
claims against Defendant Garcia for conspiracy, retaliation in violation of the

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First Amendment, and excessive force and failure to protect in violation of the

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Eighth Amendment;

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3.

All other claims and defendants are DISMISSED, without prejudice;

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4.

Plaintiff’s motions for appointment of counsel are DENIED, without prejudice;

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Plaintiff’s motion for appointment of a guardian ad lidem is DENIED, without

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prejudice;
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DENIED;
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Plaintiff’s motion for an extension of time to file a first amended complaint is

The Clerk of Court is DIRECTED to reflect the dismissal of all defendants,
except defendant F. Garcia, on the Court’s docket; and

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This case is referred back to the magistrate judge for further proceedings.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

January 10, 2019

UNITED STATES CHIEF DISTRICT JUDGE

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