Willie A. Norman v. Nofsinger,et al
Filing
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ORDER signed by Magistrate Judge Kendall J. Newman on 07/13/17 ordering plaintiff's 7/05/17 filing is construed as a request for extension of time to amend 13 . Plaintiff's request 13 is granted. Plaintiff is granted 30 days from the date of this order in which to comply with the 05/17/17 order. Plaintiff's request for appointment of counsel 13 is denied without prejudice. (Plummer, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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WILLIE A. NORMAN,
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Plaintiff,
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No. 2:17-cv-0998 JAM KJN P
v.
ORDER
NOFSINGER, et al.,
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Defendants.
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Plaintiff is a pretrial detainee, presently housed at the Sacramento County Jail. He is
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proceeding in forma pauperis, and without counsel. On June 28, 2017, the undersigned
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recommended that this action be dismissed based on plaintiff’s failure to file an amended
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complaint as required by the May 17, 2017 order. On July 5, 2017, plaintiff wrote the
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undersigned. Plaintiff states his concerns: a conviction, sentence, jail/prison conditions;
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jail/prison disciplinary issues; medical care; access to the courts; plaintiff’s property; exercise of
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religion/freedom of speech; excessive force by officers; threats to safety; retaliation; mail
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tampering; prison conditions such as the failure to provide basic needs, including showers and
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food; false documents. (ECF No. 13 at 2.) Plaintiff states that in connection with the pending
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deadline herein, he seeks relief first: “the proper and correct counsel,” citing Faretta,1 and “a
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Plaintiff appears to refer to Faretta v. California, 422 U.S. 806, 807 (1975).
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United States District Judge.” (Id.)
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Initially, the undersigned notes that plaintiff has filed four separate documents declining to
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proceed before a United States Magistrate Judge. (ECF Nos. 8, 10, 11, 14.) On May 30, 2017,
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following plaintiff’s first declination form, the court assigned United States District Judge John
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A. Mendez to this case. As plaintiff himself handwrote on his first form, “a Magistrate Judge
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may not preside over the trial in this case or make dispositive rulings without all parties’ written
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consent. 28 U.S.C. § 636(c).” (ECF No. 8 at 1.) However, a Magistrate Judge may perform the
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duties assigned pursuant to 28 U.S.C. § 636(c) and Eastern District Local Rule 302. (ECF No. 8
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at 1.) Thus, the undersigned will continue to address nondispositive motions in this case under 28
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U.S.C. § 636(b)(1)(B) and Local Rule 302, and will issue findings and recommendations on
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dispositive motions. Should the case go to trial, Judge Mendez will preside over any trial.
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Therefore, to the extent plaintiff believes he can obtain an order assigning his case solely to Judge
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Mendez by continuing to file forms declining consent to the jurisdiction of a Magistrate Judge,
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plaintiff is mistaken. Accordingly, plaintiff should refrain from filing such duplicative forms.2
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Second, despite the guidance and standards provided in the May 17, 2017 screening order,
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plaintiff appears to again contemplate filing a pleading that raises wholly unrelated factual
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allegations against multiple unrelated defendants. Plaintiff is cautioned that it is improper to file
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a “shotgun” pleading, which alleges “that multiple parties did an act, without identifying which
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party did what specifically,” and advances “multiple claims, [but] does not identify which specific
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facts are allocated to which claim.” Hughey v. Camocho, 2014 WL 5473184, at *4 (E.D. Cal.
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Oct. 23, 2014) (citing Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir. 2001)); see George v.
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Smith, 507 F.3d 605, 607 (7th Cir. 2007); see also Fed. R. Civ. P. 20(a)(2) (joinder of defendants
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not permitted unless both commonality and same transaction requirements are satisfied). As
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plaintiff was informed in the screening order, this court is barred from directly interfering with
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ongoing criminal proceedings in state court, absent extraordinary circumstances not alleged in the
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Moreover, plaintiff is cautioned that a litigant proceeding in forma pauperis may suffer
restricted access to the court where it is determined that he has filed excessive motions in a
pending action. DeLong v. Hennessey, 912 F.2d 1144 (9th Cir. 1990); see also Tripati v.
Beaman, 878 F.2d 351, 352 (10th Cir. 1989).
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complaint. (ECF No. 6 at 4, citing Younger v. Harris, 401 U.S. 37, 46 (1971); Mann v. Jett, 781
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F.2d 1448, 1449 (9th Cir. 1986) (“When a state criminal prosecution has begun the Younger rule
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directly bars a declaratory judgment action” as well as a section 1983 action for damages “where
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such an action would have a substantially disruptive effect upon ongoing state criminal
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proceedings.”).
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Third, plaintiff appears to seek the appointment of counsel. Plaintiff’s reference to
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Faretta, as well as his status as a pretrial detainee, suggests that plaintiff is seeking counsel (or
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new counsel) in his underlying criminal proceedings. However, this court does not have
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jurisdiction to appoint counsel to represent plaintiff in state criminal proceedings. He must
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pursue such requests in his state criminal proceedings.
To the extent plaintiff seeks appointment of counsel in the instant action, such request is
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premature. 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 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 complexity
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of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court
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did not abuse discretion in declining to appoint counsel). The burden of demonstrating
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exceptional circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such
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as lack of legal education and limited law library access, do not establish exceptional
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circumstances that warrant a request for voluntary assistance of counsel.
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Here, the court is unable to evaluate plaintiff’s likelihood of success on the merits of the
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instant case because his complaint has been dismissed and he has not yet filed a pleading that
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states a cognizable civil rights claim. Having considered the factors under Palmer, the court finds
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that plaintiff has failed to meet his burden of demonstrating exceptional circumstances warranting
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the appointment of counsel at this time.
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Finally, because it appears that plaintiff’s document was written before the findings and
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recommendations issued, the undersigned will construe his recent filing as a request for extension
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of time to amend, vacate the findings and recommendations, and grant plaintiff an extension of
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time in which to file his amended complaint. Plaintiff is cautioned, however, that he must timely
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file his amended complaint, and the amended complaint must comply with the May 17, 2017
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order. Failure to do so will result in a recommendation that this action be dismissed.
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Good cause appearing, IT IS HEREBY ORDERED that:
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1. Plaintiff’s July 5, 2017 filing is construed as a request for extension of time to amend
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(ECF No. 13);
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2. Plaintiff’s request (ECF No. 13) is granted;
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3. Plaintiff is granted thirty days from the date of this order in which to comply with the
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May 17, 2017 order; and
4. Plaintiff’s request for appointment of counsel (ECF No. 13) is denied without
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prejudice.
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Dated: July 13, 2017
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/cw/norm0998.36
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