Jones v. California Medical Facility Custody Staff
Filing
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ORDER signed by Magistrate Judge Kendall J. Newman on 11/19/12 ORDERING that the courts recommendation that this action be dismissed without prejudice 13 , is VACATED. Plaintiffs request for leave to proceed in forma pauperis 7 , is GRANTED. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiffs request for appointment of counsel 15 , is DENIED without prejudice. Plaintiffs complaint 1 , is DISMISSED with 30 days to amend. Clerk of Court is directed to send plaintiff copies of the following documents, together with a copy of this order: (1) the original complaint and attached exhibits Dkt. No. 1 ; (2) the supplemental exhibits forwarded by the Northern District Dkt. No. 9 ; (3) plaintiffs letters to the court (Dkt. Nos. 5 , 6 ); (4) this courts Order and Findings and Recommendations filed October 18, 2012 (Dkt. No. 13 ).(Dillon, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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LUTHER JONES, JR.,
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Plaintiff,
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No. 2:12-cv-02381 KJM KJN P
vs.
CALIFORNIA MEDICAL FACILITY
CUSTODY STAFF,
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Defendants.
ORDER
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On October 18, 2012, this court recommended the dismissal of this action without
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prejudice based on plaintiff’s concession that he had failed to exhaust his administrative
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remedies. (See Dkt. No. 13.) Due to the apparent inability of plaintiff to proceed with this action
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at this time, the court declined to impose the filing fee pursuant to plaintiff’s application to
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proceed in forma pauperis. Nevertheless, the court pointed out the substantive deficiencies of
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plaintiff’s complaint to guide him in the future.
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On November 5, 2012, plaintiff filed a Notice of Change of Address, informing
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the court of plaintiff’s transfer to California State Prison-Corcoran (“CSP-COR”), and a motion
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for appointment of counsel, which includes objections to the undersigned’s findings and
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recommendations. Plaintiff asserts that he did exhaust his administrative remedies, the proof of
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which he submitted to the United States District Court for the Northern District of California.
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However, all of plaintiff’s documents sent to the Northern District were forwarded to this court.
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(See Dkt. No. 9; see also Dkt. No. 1 (exhibits attached to complaint); Dkt. Nos. 5, 6 (letters from
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plaintiff) .) Pursuant to this court’s review of those documents, the undersigned concluded that
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they did not include a Third Level Review, and therefore failed to demonstrate the exhaustion of
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administrative remedies. (See Dkt. No. 13 at 4.) Plaintiff asserts that the court reached the
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wrong conclusion. However, plaintiff states that he is presently in administrative segregation at
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CSP-COR, without access to his legal documents, and requires the appointment of counsel to
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obtain his legal materials and pursue his claims of deliberate indifference to his serious medical
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needs.
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The court previously cautioned plaintiff “that if he attempts to further pursue the
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instant action, rather than file a new civil rights action after exhaustion of his administrative
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remedies, the court will grant in forma pauperis status and impose the $350.00 filing fee in this
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case before again recommending that this action be dismissed.” (Dkt. No. 13 at 6.) In an
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abundance of caution, the court will not recommend dismissal at this time, but accord plaintiff an
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opportunity to demonstrate that his claims are viable. Because plaintiff wishes to pursue this
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action, and has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a),1
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his request to proceed in forma pauperis is granted.
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Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28
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U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee
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in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will
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direct the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account
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and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly
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Although the application completed by plaintiff is on a form used by another district
court, plaintiff’s responses, together with a copy of plaintiff’s trust account statement, are
sufficient to assess plaintiff’s eligibility to proceed in forma pauperis.
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payments of twenty percent of the preceding month’s income credited to plaintiff’s prison trust
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account. These payments will be forwarded by the appropriate agency to the Clerk of the Court
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each time the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28
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U.S.C. § 1915(b)(2).
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However, plaintiff’s request for appointment of counsel must be denied at this
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time. District courts lack authority to require counsel to represent indigent prisoners in
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section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In
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exceptional circumstances, the court may request an attorney to voluntarily to represent such a
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plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991);
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Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether
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“exceptional circumstances” exist, the court must consider plaintiff’s likelihood of success on the
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merits as well as the ability of the plaintiff to articulate his claims pro se in light of the
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complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009)
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(district court did not abuse discretion in declining to appoint counsel). The burden of
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demonstrating exceptional circumstances is on the plaintiff. See Palmer, 560 F.3d at 970.
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Circumstances common to most prisoners, such as lack of legal education and limited law library
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access, do not establish exceptional circumstances that warrant a request for voluntary assistance
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of counsel.
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For the several reasons previously stated by this court, plaintiff has not
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demonstrated a likelihood of success on the merits of his claims. However, plaintiff has
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demonstrated tenacity in pursuing this action, and ably articulated his reasons for doing so.
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Therefore, pursuant to the factors identified in Palmer, the court finds that plaintiff has failed to
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meet his burden of demonstrating exceptional circumstances warranting the appointment of
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counsel at this time.
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Plaintiff will be accorded thirty days to file an amended complaint, subject to the
exhaustion and substantive considerations previously emphasized by this court. (See Dkt. No.
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13.) In an amended complaint, plaintiff must demonstrate how the conditions about which he
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complains resulted in a deprivation of his constitutional rights. Rizzo v. Goode, 423 U.S. 362,
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371 (1976). Also, the complaint must allege in specific terms how each named defendant is
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involved. Id. There can be no liability under Section 1983 unless there is an affirmative link or
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connection between a defendant’s actions and the claimed deprivation. Id.; May v. Enomoto,
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633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague
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and conclusory allegations of official participation in civil rights violations are not sufficient.
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Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
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An amended complaint must be complete in itself without reference to any prior
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pleading. See Local Rule 220; Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). In the present
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case, plaintiff is directed to attach all pertinent documents as exhibits to his amended complaint.
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The court will no longer refer to plaintiff’s several filings as a composite complaint.
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An amended complaint must comply with the requirements of the Civil Rights
Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice.
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Plaintiff may send or forward a copy of this order to the litigation coordinators at
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CSP-COR, San Quentin State Prison, and the California Medical Facility, in support of any
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request to obtain copies of his pertinent legal documents. In addition, the court will send
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plaintiff, together with a copy of this order, copies of all documents plaintiff has filed to date in
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this action, together with the court’s prior order. Staff at CSP-COR are directed to provide
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plaintiff with an adequate opportunity to review all of these documents, and to prepare an
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amended complaint (or a request that this action be dismissed without prejudice).
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Accordingly, for the foregoing reasons, IT IS HEREBY ORDERED that:
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1. The court’s recommendation that this action be dismissed without prejudice
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(Dkt. No. 13), is vacated.
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2. Plaintiff’s request for leave to proceed in forma pauperis (Dkt. No. 7), is
granted.
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3. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action.
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Plaintiff is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.
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§ 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the
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Director of the California Department of Corrections and Rehabilitation filed concurrently
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herewith.
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4. Plaintiff’s request for appointment of counsel (Dkt. No. 15), is denied without
prejudice.
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5. Plaintiff’s complaint (Dkt. No. 1), is dismissed.
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6. Within thirty days after service of this order, plaintiff shall complete the
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attached Notice of Amendment and submit the following documents to the court:
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a. The completed Notice of Amendment.
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b. An original and one copy of the Amended Complaint; the Amended
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Complaint must bear the docket number assigned to this case and be
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labeled “Amended Complaint.”
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c. All pertinent exhibits as attachments to the Amended Complaint.
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7. Alternatively, within thirty days after service of this order, plaintiff may
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request that this action be dismissed without prejudice, so that plaintiff can pursue his medical
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needs at CSP-COR and/or exhaust his administrative remedies before filing a new action.
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8. The Clerk of Court is directed to send plaintiff copies of the following
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documents, together with a copy of this order: (1) the original complaint and attached exhibits
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(Dkt. No. 1); (2) the supplemental exhibits forwarded by the Northern District (Dkt. No. 9); (3)
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plaintiff’s letters to the court (Dkt. Nos. 5, 6); (4) this court’s Order and Findings and
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Recommendations filed October 18, 2012 (Dkt. No. 13).
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9. Failure of plaintiff to timely respond to this order will result in the dismissal of
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this action without prejudice.
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DATED: November 19, 2012
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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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jone2381.14.plus
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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LUTHER JONES, JR.,
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Plaintiff,
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No. 2:12-cv-02381 KJM KJN P
vs.
CALIFORNIA MEDICAL FACILITY
CUSTODY STAFF,
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NOTICE OF AMENDMENT
Defendants.
_______________________________/
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Plaintiff hereby submits the following in compliance with the court’s order
filed
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Amended Complaint
OR
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Request that this action be dismissed without
prejudice.
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Date
Plaintiff
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