(PS) Ferreira da Silva v. Ross et al

Filing 21

ORDER signed by Magistrate Judge Carolyn K. Delaney on 11/19/2021 DENYING 16 Motion to Appoint Counsel; GRANTING 16 Motion for Extension of Time and DENYING 20 Request to participate in electronic case filing. (Rodriguez, E)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALEXANDRA FERREIRA DA SILVA,

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No. 2:21-cv-01208-KJM-CKD PS

Plaintiff,
v.

ORDER

JONATHAN KEVIN ROSS, et al.,,

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Defendants.

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On October 28, 2021, the undersigned filed an order and findings and recommendations in

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this case. (ECF No. 13.) Specifically, the undersigned found service appropriate for defendant

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Officer Heidi Morgan on plaintiff’s claim of excessive force and ordered the Clerk of the Court to

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issue process pursuant to Federal Rule of Civil Procedure 4. In order to effectuate service of

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process on Officer Morgan, plaintiff was directed to return the necessary documents to the US

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Marshal within 30 days.

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By findings and recommendations issued concurrently, the undersigned recommended this

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court dismiss all other claims and defendants from this case. These findings and

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recommendations contained notice that any objections to the findings and recommendations were

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to be filed within fourteen days. Plaintiff was also notified that failure to file objections within the

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specified time could waive the right to appeal any order of the court adopting the findings and

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recommendations.

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On November 4, 2021, plaintiff filed a motion for extension of time and requested the

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appointment of counsel. (ECF No. 16.) On November 10, 2021, plaintiff filed a notice of

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interlocutory appeal which has been processed to the United States Court of Appeals for the Ninth

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Circuit. (ECF Nos. 17-19.) On November 16, 2021, plaintiff filed a document in this court in

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which she requested permission to electronically file documents. (ECF No. 20.)

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Effect of the Interlocutory Appeal on the Pending Motions

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The filing of an interlocutory appeal “divests the district court of jurisdiction to proceed

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with trial,” Chuman v. Wright, 960 F.2d 104, 105 (9th Cir. 1992), and “over the particular issues

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involved in [the] appeal.” City of Los Angeles v. Santa Monica Baykeeper, 254 F.3d 882, 886

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(9th Cir. 2001). However, the filing of an interlocutory appeal does not divest the trial court of

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jurisdiction over aspects of the case that are not the subject of the appeal. United States v. Pitner,

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307 F.3d 1178, 1183 n. 5 (9th Cir. 2002).

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Here, it appears plaintiff is attempting to appeal some or all of the October 28, 2021 order

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and findings and recommendations. However, the appeal is bound to be dismissed as premature

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or otherwise procedurally improper. First, findings and recommendations cannot be directly

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appealed; instead the proper course of action if plaintiff disagrees with any of the undersigned’s

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findings and recommendations is to file objections to the findings and recommendations in this

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court and then wait for the district court ruling by the assigned district judge – in this case the

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Honorable Chief District Judge Kimberly J. Mueller – prior to filing an appeal. It further does not

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appear the appeal is properly taken as to the order finding service appropriate for Officer Morgan.

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Under these circumstances, the undersigned considers plaintiff’s pending motions and requests

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which do not involve the subject of a properly filed appeal.

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Motion for Extension of Time

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Plaintiff’s request for an extension of time does not specify for what purpose the extension

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of time is requested. The undersigned construes the filing as requesting an extension of time to

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file objections to the October 28, 2021 recommendation to dismiss claims and defendants, and/or

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requesting an extension of time to supply the U.S. Marshal with documents needed to effectuate

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service of process. So construed, the request will be granted.
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Motion for Appointment of Counsel

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It is “well-established that there is generally no constitutional right to counsel in civil

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cases.” United States v. Sardone, 94 F.3d 1233, 1236 (9th Cir. 1996). However, under

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“exceptional circumstances,” a court may appoint counsel for indigent civil litigants pursuant to

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28 U.S.C. § 1915(e)(1). When determining whether “exceptional circumstances” exist, a court

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considers both “the likelihood of success on the merits as well as the ability of the petitioner to

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articulate [the] claims pro se in light of the complexity of the legal issues involved.” Palmer v.

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Valdez, 560 F.3d 965, 970 (9th Cir. 2009).

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Plaintiff’s first request for counsel was denied on September 1, 2021. The court has

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extremely limited resources to appoint attorneys in civil cases and there are no new circumstances

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alleged. Considering the Palmer factors, plaintiff does not meet the burden of demonstrating

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exceptional circumstances warranting the appointment of counsel at this time.

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Request to Participate in Electronic Case Filing

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Finally, plaintiff has requested to participate in electronic case filing. (ECF No. 20.)

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Generally, “any person appearing pro se may not utilize electronic filing except with the

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permission of the assigned Judge or Magistrate Judge.” See E.D. Cal. L.R. 133(b)(2). Plaintiff’s

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request for electronic case filing does not provide good cause for deviance from the Local Rule

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applicable to unrepresented litigants. At the current stage of this case, the motion will be denied.

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Conclusion

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Good cause appearing, IT IS HEREBY ORDERED:

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1. Plaintiff’s motion for appointment of counsel (ECF No. 16) is DENIED;

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2. Plaintiff’s motion for extension of time (ECF No. 16) is GRANTED to the extent that

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plaintiff has up to and including December 17, 2021 to file objections to the October 28, 2021

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findings and recommendations, and, further the motion for extension of time is GRANTED to the

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extent that a new due date for plaintiff to provide the documents needed to effectuate service of

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process on Officer Morgan as set forth in the October 28, 2021 order will be provided following

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the dismissal or conclusion of the pending interlocutory appeal; and

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3. Plaintiff’s request to participate in electronic case filing (ECF No. 20) is DENIED.
Dated: November 19, 2021
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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8.ferreira1208.misc

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