Dennis v. Kerman et al

Filing 26

ORDER signed by Magistrate Judge Allison Claire on 07/11/18 ORDERING Plaintiffs motion for leave to proceed on his Second Amended Complaint, 20 is GRANTED. This action shall now proceed on plaintiffs Second Amended Complaint, 21 . Plaintiffs reque st for appointment of counsel, 19 , is DENIED without prejudice. A decision on plaintiffs motion for preliminary injunctive relief, 25 , is deferred until the screening of plaintiffs Second Amended Complaint. Plaintiff shall, within thirty (30) days after the filing date of this order, submit to the court all exhibits referenced in his Second Amended Complaint; the court will direct the Clerk of Court to attach these exhibits to the Second Amended Complaint. (Plummer, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

MATTHEW DENNIS,

12
13
14
15

No. 2:16-cv-0542 JAM AC P

Plaintiff,
v.

ORDER

SCOTT KERNAN, et al.,
Defendants.

16
17

Plaintiff is a state prisoner proceeding pro se with this civil rights action filed pursuant to

18

42 U.S.C. § 1983. Presently pending are the following matters: (1) plaintiff’s motion for leave to

19

proceed on his proposed Second Amended Complaint, ECF No. 20; (2) plaintiff’s motion for

20

preliminary injunctive relief, ECF No. 25; and (3) plaintiff’s third request for appointment of

21

counsel, ECF No. 19. For the reasons that follow, the court grants plaintiff’s request to proceed

22

on his Second Amended Complaint (SAC); denies without prejudice plaintiff’s request for

23

appointment of counsel; and defers ruling on plaintiff’s motion for preliminary injunctive relief.

24

Plaintiff is directed to submit to the court all exhibits referenced in his SAC, so the court can

25

properly screen the SAC pursuant to 28 U.S.C. § 1915A, and assess the merits of plaintiff’s

26

motion for preliminary injunctive relief.

27
28

The SAC names twenty-one defendants and challenges plaintiff’s health care both at High
Desert State Prison (HDSP) and California State Prison Corcoran (CSP-COR). The SAC
1

1

references numerous events and recounts plaintiff’s repeated efforts to obtain adequate care

2

through the administrative appeals process. The SAC identifies both federal and state law claims,

3

and references multiple exhibits. Plaintiff states that he will provide these exhibits upon the

4

court’s request. The undersigned finds it necessary to review plaintiff’s exhibits in order to

5

screen his complaint pursuant to 28 U.S.C. § 1915A, and therefore orders their submission.

6

The undersigned again finds that plaintiff has not demonstrated exceptional circumstances

7

warranting the appointment of counsel. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d

8

1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

9

Circumstances common to most prisoners, such as lack of legal education and limited law library

10

access, do not establish the requisite exceptional circumstances. Palmer v. Valdez, 560 F.3d 965,

11

970 (9th Cir. 2009). The test for exceptional circumstances requires the court to evaluate

12

plaintiff’s likelihood of success on the merits of his claims and the ability of plaintiff to articulate

13

his claims pro se in light of the complexity of the legal issues involved. See Wilborn v.

14

Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir.

15

1983). Plaintiff’s SAC and pending motion demonstrate that plaintiff, proceeding pro se, is

16

articulate and thorough in the presentation of his factual allegations and legal claims. Whether

17

there is a reasonable likelihood that plaintiff can succeed on the merits of his claims will be more

18

apparent after screening the SAC. Therefore, plaintiff’s request for appointment of counsel will

19

be denied without prejudice at this time.

20

Finally, plaintiff’s motion for preliminary injunctive relief appears to be premised on the

21

same ongoing medical conditions at issue on the SAC’s claims for relief. In evaluating the merits

22

of this motion, this court must consider whether plaintiff has shown that “he is likely to succeed

23

on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that

24

the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v.

25

Natural Resources Defense Council, 555 U.S. 7, 20 (2008); Stormans, Inc. v. Selecky, 586 F.3d

26

1109, 1127 (9th Cir. 2009) (quoting Winter). The granting of injunctive relief requires

27

demonstration of a significant threat of irreparable injury that must be imminent in nature.

28

Caribbean Marine Serv. Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988). Because the SAC
2

1

has not yet been screened, the court is unable to determine the likelihood of plaintiff’s success on

2

the merits of his claims, or whether the injuries he alleges are imminent, and is therefore unable to

3

assess the merits of plaintiff’s motion for preliminary injunctive relief. For this reason,

4

petitioner’s motion for preliminary injunctive relief will not be addressed at this time, but upon

5

screening plaintiff’s SAC.

6

For these several reasons, IT IS HEREBY ORDERED that:

7

1. Plaintiff’s motion for leave to proceed on his Second Amended Complaint, ECF No.

8

20, is GRANTED.

9

2. This action shall now proceed on plaintiff’s Second Amended Complaint, ECF No. 21.

10
11

3. Plaintiff’s request for appointment of counsel, ECF No. 19, is DENIED without
prejudice.

12

4. A decision on plaintiff’s motion for preliminary injunctive relief, ECF No. 25, is

13

deferred until the screening of plaintiff’s Second Amended Complaint pursuant to 28 U.S.C. §

14

1915A.

15

5. Plaintiff shall, within thirty (30) days after the filing date of this order, submit to the

16

court all exhibits referenced in his Second Amended Complaint; the court will direct the Clerk of

17

Court to attach these exhibits to the Second Amended Complaint.

18
19

IT IS SO ORDERED.
DATED: July 11, 2018

20
21
22
23
24
25
26
27
28
3