Keeton v. Lynch et al

Filing 11

ORDER signed by Magistrate Judge Edmund F. Brennan on 09/09/2021 DISMISSING 1 Complaint with 30 days leave to amend. Clerk to send courtesy copy of pages 1-34 of 1 Complaint and a Prisoner Civil rights packet. ECF Nos. 5 , 7 ,and 10 TERMINATED in accordance with this order. (Rodriguez, E)

Case 2:20-cv-02270-EFB Document 11 Filed 09/09/21 Page 1 of 5
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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA

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TOMMY ROY KEETON,
Plaintiff,
v.
JEFF LYNCH, et al.,
Defendants.

No. 2:20-cv-2270-EFB P
ORDER1

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Plaintiff is a state prisoner proceeding without counsel in an
action brought under 42 U.S.C. § 1983. Plaintiff has filed a
complaint and several miscellaneous “motions.” See ECF No. 1,
5, 7, 9,2 10.
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Given plaintiff’s visual impairment, the court has
increased the font size of this order.
ECF No. 9 is plaintiff’s application for leave to proceed in
forma pauperis. Because plaintiff has been designated a threestrikes litigant for purposes of 28 U.S.C. § 1915(g), see Keeton v.
Marshall, NO. CV 17-1213-FMO (KS), 2018 U.S. Dist. LEXIS
156582 (C.D. Cal., Sept. 13, 2018), the court defers ruling on
this request. Upon plaintiff’s filing of a legible complaint, the
court will review it to determine whether plaintiff was under
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Case 2:20-cv-02270-EFB Document 11 Filed 09/09/21 Page 2 of 5
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Complaint
Federal courts must engage in a preliminary screening of
cases in which prisoners seek redress from a governmental entity
or officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). The court must identify cognizable claims or
dismiss the complaint, or any portion of the complaint, if the
complaint “is frivolous, malicious, or fails to state a claim upon
which relief may be granted,” or “seeks monetary relief from a
defendant who is immune from such relief.” Id. § 1915A(b).
The court cannot discharge its duty under § 1915A because
plaintiff’s handwritten 34-page complaint is mostly illegible. See
E.D. Cal. Local Rule 130(b) (requiring that complaints be
legible). To proceed, plaintiff must file an amended complaint
that is legible, i.e., typed or neatly written with adequate spacing
between letters, words, and lines.
Any amended complaint must not add new, unrelated
claims. As best the court can tell, the original complaint
concerns lack of library access and the mismanagement of
plaintiff’s diabetes. See ECF No. 1.
Miscellaneous Motions
On November 23, 2020, plaintiff filed a “motion to the
courts addressing his being denied of the right to attend within
the law library facilities.” ECF No. 5. As best the court can tell,
plaintiff is asserting that he was denied access to the law library
and requests appointment of counsel. It is not clear from the

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imminent danger of serious physical injury when he commenced
this action on November 13, 2020. See 28 U.S.C. § 1915(g).
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mostly illegible filing what relief plaintiff seeks from the court
(apart from appointment of counsel) or why he requires library
access.
On December 2, 2020, plaintiff filed a “Notice to the
Courts” stating that he had misspelled several of the 23
defendants’ names in the original complaint. ECF No. 7. He
again requested appointment of counsel and stated he had been
denied access to the law library.
On May 20, 2021, plaintiff again requested “assignment of
counsel,” as well as “large print materials” on account of a visual
impairment. ECF No. 10.
I. Request for Counsel and Request for Large Print
Materials
District courts lack authority to require counsel to represent
indigent prisoners in section 1983 cases. Mallard v. United
States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional
circumstances, the court may request an attorney to voluntarily
to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell
v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v.
Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When
determining whether “exceptional circumstances” exist, the court
must consider the likelihood of success on the merits as well as
the ability of the plaintiff to articulate his claims pro se in light of
the complexity of the legal issues involved. Palmer v. Valdez,
560 F.3d 965, 970 (9th Cir. 2009). Having considered those
factors, the court finds there are no exceptional circumstances in
this case. Plaintiff’s requests for appointment of counsel are
therefore denied.
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As an accommodation to plaintiff regarding his visual
impairment, the court will attempt to send its orders in large
print, to the extent possible.
II. Law Library Access and Notice of Misspellings
If plaintiff finds that he cannot comply with a courtimposed deadline because of lack of library access, he may
request an extension of time from the court. In any such request,
plaintiff should describe the efforts he has made to meet the
deadline and state why library access is required for such
compliance. He shall also describe the efforts he has made to
access the library and state why those efforts were unsuccessful.
As a one-time courtesy, the court will direct the Clerk of the
Court to send plaintiff a copy of the handwritten portion of his
original complaint. Plaintiff may refer to this courtesy copy to
prepare an amended complaint in accordance with this order and
doing so should not require library access.
In drafting an amended complaint, plaintiff may correct any
misspelled names of the defendants.
Conclusion
Accordingly, IT IS ORDERED that:
1. The complaint (ECF No. 1) is dismissed with leave to
amend within 30 days from the date of service of this
order. The complaint must bear the docket number
assigned to this case and be titled “Amended
Complaint.” Failure to comply with this order will
result in dismissal of this action for failure to obey a
court order and/or failure to prosecute.
/////
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Case 2:20-cv-02270-EFB Document 11 Filed 09/09/21 Page 5 of 5
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2. The Clerk of Court is directed to send plaintiff (a) a
courtesy copy of pages 1-34 of ECF No. 1, and (b) the
form for use in filing civil rights actions in this district.
3. The Clerk of the Court shall terminate ECF Nos. 5, 7,
and 10 in accordance with this order.
Dated: September 9, 2021.

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