Putney v. Fox et al

Filing 22

ORDER signed by Magistrate Judge Deborah Barnes on 1/25/2018 DENYING without prejudice plaintiff's 21 request for appointment of counsel and VACATING the 20 findings and recommendations filed 10/31/2017. Plaintiff shall file a first amended complaint within 30 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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THOMAS EARL PUTNEY,

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Plaintiff,

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No. 2:17-cv-1507 WBS DB P

v.

ORDER

WARDEN ROBERT FOX, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se in this civil rights action pursuant to 42

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U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28

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U.S.C. § 636(b)(1). On September 14, 2017, plaintiff’s complaint was dismissed for failure to

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state a claim. Leave to amend was granted, and an amended pleading was due on or before

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October 14, 2017. When plaintiff failed to file an amended complaint by that date, the

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undersigned issued findings and recommendations to dismiss this action without prejudice.
Plaintiff has now filed objections to the findings and recommendations claiming that he

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missed the court deadline for filing an amended pleading because he was placed in an acute crisis

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hospital for his mental health condition and was thus unable to write to the court. He also argues

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that his mental health and his placement in the Enhanced Outpatient Program (“EOP”) prevents

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him from properly prosecuting this action, and he once again requests the appointment of counsel.

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In support of his motion, plaintiff filed several documents chronicling his physical and

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mental issues. As for his physical health, plaintiff submits some medical records as well as

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multiple health care grievances addressing lost or missing medical appliances. As for his mental

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health, plaintiff submits a July 2013 order appointing counsel in a habeas case, Putney v. People

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of the State of California, 1:13-cv-0771 JLT (E.D. Cal.), based on a July 2011 report from a

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psychologist, who reported that plaintiff’s mental illness “wax[es] and wan[es] – but [is] never

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entirely absent – [and during which he demonstrates] chronic depression/manic episodes,

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impulsivity and decision-making that appears anything but rationally thought out, and poor

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cognitive, perceptual, and emotional functioning that are ever-present to some degree.” Pl.’s Obj.

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Attach. (ECF No. 21 at 8-14). He also submits a printout of “Bed Assignments” showing that

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between January 2015 and January 2016, plaintiff was placed in a mental health crisis bed at least

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six times. See id. (ECF No. 21 at 6).

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The United States Supreme Court has ruled that district courts lack authority to require

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counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490

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U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the

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voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d

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

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The test for exceptional circumstances requires the court to evaluate the plaintiff’s

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likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in

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light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328,

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1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).
Plaintiff’s original complaint was screened and dismissed for failure to state a claim since

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the allegations were cursory, and the undersigned declined to peruse through 450 pages of

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attachments to find the nature of plaintiff’s claim(s). Although plaintiff has now submitted

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evidence of his mental illness, there is no indication that plaintiff is unable to articulate his claims

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in an amended pleading. Furthermore, in the absence of the amended pleading, the court is unable

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to evaluate the likelihood of plaintiff’s success on the merits.

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For these reasons, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for appointment of counsel (ECF No. 21) is denied without

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prejudice to its renewal;

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2. The October 31, 2017, findings and recommendations (ECF No. 20) are vacated; and

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3. Plaintiff shall file a first amended complaint within thirty days from the date of this

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order.
Dated: January 25, 2018

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/DLB7;
DB/Inbox/Substantive/putn1507.eot fac

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