Khouanmany v. United States Marshals et al

Filing 124

ORDER signed by Magistrate Judge Edmund F. Brennan on 1/29/2020 GRANTING plaintiff's 107 motion to amend the complaint, to the extent that, within 30 days, plaintiff must submit an amended complaint that is compete in itself in accordance w ith this order; DENYING as duplicative and thus moot plaintiff's subsequently-filed 114 , 120 motions to amend; DENYING plaintiff's 108 , 112 , 114 motions to compel; DENYING without prejudice plaintiff's 114 , 119 motions for the appointment of counsel ; and DISREGARDING plaintiff's 122 responses to discovery. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VILAYCHITH KHOUANMANY,

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No. 2:17-cv-1326-TLN-EFB P

Plaintiff,
v.

ORDER

UNITED STATES MARSHALS, et al.,
Defendants.

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Plaintiff is a federal prisoner proceeding pro se with an action arising under Bivens v. Six

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Unknown Named Agents, 403 U.S. 388 (1971). She currently proceeds with an Eighth

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Amendment claim for alleged sexual assault against defendant Alencastre. See ECF Nos. 73, 77,

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& 92. On September 3, 2019, plaintiff filed a motion to amend which sought primarily to

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reinstitute claims that the court had already screened out. ECF No. 101. The court recommended

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that motion be denied based on: (1) the length of time this case has already been pending; (2)

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plaintiff’s lengthy and troubled history of filing numerous motions to amend; and (3) the

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scattershot nature of plaintiff’s proposed amended complaint. ECF No. 106. Those

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recommendations were adopted in full by the district judge. ECF No. 113.

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After the foregoing recommendations were filed, plaintiff submitted numerous additional

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motions – three more motions to amend (ECF Nos. 107, 114, 120), three motions to compel (ECF

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Nos. 108, 112, 114), two motions to appoint counsel (ECF Nos. 114, 119), and what appears to be
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responses to defendant Alencastre’s discovery requests (ECF No. 122). As discussed below,

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plaintiff is granted leave to file an amended complaint as provided herein, and all other motions

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are denied.

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Motion to Amend
In the October 21, 2019 motion to amend, plaintiff states, inter alia, that she named the

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wrong individual as the alleged perpetrator of her sexual assault. ECF No. 107 at 2. She requests

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that defendant Alencastre be replaced with Kevin Deppe. Id. The motion to amend, however, is

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not a complaint that is complete in itself. Indeed, plaintiff refers to it as both a motion to amend

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and a “motion to supplement defendant(s).” ECF No. 107 at 1. The local rules require that every

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amended pleading be complete in itself. See Local Rule 220. Thus, in granting her motion to

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amend, plaintiff is directed to file her amended complaint which substitutes Kevin Deppe within

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thirty days from the date of service of this order. Once the new complaint is submitted, the court

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will screen it and, if appropriate, recommend that defendant Alencastre be dismissed from this

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suit.1 Plaintiff’s subsequently-filed motions to amend, ECF Nos. 114 and 120, are denied as

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duplicative and thus, moot. Plaintiff is cautioned that the filing of duplicative motions serves

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only to slow the progress of this case. In the future, plaintiff shall await a response from the court

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before filing redundant requests.

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As defendants requested in response to the motion to amend, the court re-affirms that the

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only active claim is an Eighth Amendment claim for sexual assaults alleged to have occurred on

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February 26, 2016, March 1, 2016, and March 11, 2016. ECF No. 110 at 2. Thus, plaintiff is

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cautioned that leave to amend is granted only as to that claim to permit plaintiff to substitute

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Kevin Deppe as a defendant.

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However, plaintiff states in one of her motions that she intends to include Alencastre as a
co-defendant in an amended complaint because “he was there” and thus, has information that she
would like to seek through discovery. ECF No. 114 at 4. That is not a basis for including
Alencastre as a defendant. While plaintiff may seek discovery from witnesses with relevant
information, simply being “there” is not adequate grounds for a claim. Plaintiff is admonished
that unless she alleges actions by Alencastre that violated her federally-protected rights,
Alencastre should not be included as a defendant in any amended complaint. If plaintiff files an
amended complaint that states a viable claim as to Deppe, plaintiff will have the opportunity to
engage in discovery.
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Motions to Compel

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Plaintiff’s motions to compel (ECF Nos 108, 112, 114) are denied. The interrogatories at

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issue were directed at defendant Alencastre whom, as noted supra, plaintiff now indicates she

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misidentified as the perpetrator of her sexual assault. Thus, it appears that adjudicating these

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motions to compel would be a waste of judicial economy. Further, as defendant points out, the

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other requests for discovery assistance contained in the motions are untimely and should have

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been submitted by September 27, 2019. See ECF No. 96.

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Motions to Appoint Counsel

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Plaintiff has also filed redundant requests for appointment of counsel (ECF Nos. 114,

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119). As has previously been explained (see ECF Nos 31, 42, 49, 60, 64, 67, 79), district courts

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lack authority to require counsel to represent indigent prisoners in section 1983 cases. Mallard v.

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United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may

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request an attorney to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell

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v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900F.2d 1332, 1335-36

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(9th Cir. 1990). When determining whether “exceptional circumstances” exist, the court must

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consider the likelihood of success on the merits as well as the ability of the plaintiff to articulate

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his claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560

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F.3d 965, 970 (9th Cir. 2009). Having considered those factors once again, the court still finds

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there are no exceptional circumstances in this case.

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Discovery Responses

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Plaintiff has filed her responses to defendant’s discovery with the court. ECF No. 122.

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As plaintiff is aware (see ECF No. 99), discovery requests/responses shall only be filed with the

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court if they are at issue. See E.D. Cal. Local Rules 250.2-250.4. At this time, there is no

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proceeding before the court that requires the court’s review of plaintiff’s discovery responses.

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Conclusion

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Based on the foregoing, it is ORDERED that:

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1.

Plaintiff’s motion to amend (ECF No. 107) is GRANTED to the extent that, within

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thirty days from the date of service of this order, plaintiff must submit an amended

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complaint that is complete in itself and substitutes Kevin Deppe as a defendant to

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this action;

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2.

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Plaintiff’s subsequently-filed motions to amend (ECF Nos. 114 and 120) are
DENIED as duplicative and thus, moot;

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3.

Plaintiff’s motions to compel (ECF Nos. 108, 112, 114) are DENIED;

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4.

Plaintiff’s motions for the appointment of counsel (ECF Nos. 114, 119) are

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DENIED, without prejudice; and
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Plaintiff’s responses to discovery (ECF No. 122) are disregarded.

DATED: January 29, 2020.

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