(PC) DeOllas v. County of Sacramento et al

Filing 18

ORDER signed by Magistrate Judge Deborah Barnes on 06/03/2024 DENYING 17 Motion to Appoint Counsel and 16 Motion for 180-day Extension of Time. Plaintiff is GRANTED 30 days to file the Second Amended Complaint. (Murphy, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY EUGENE DeOLLAS, II,

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No. 2:22-cv-0906 DB P

Plaintiff,
v.

ORDER

COUNTY OF SACRAMENTO, et al.,
Defendants.

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Plaintiff, a county jail inmate proceeding pro se with a civil rights action, has requested

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appointment of counsel and a further 180-day extension of time to file a second amended

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complaint. For the reasons set forth below, these requests are denied. Sua sponte, the court grants

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plaintiff a final extension of time of 30 days to file a second amended complaint before issuing

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findings and recommendations to dismiss this action without prejudice.

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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). Circumstances

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common to most prisoners, such as lack of legal education and limited law library access, do not

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establish exceptional circumstances that would warrant a request for voluntary assistance of

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counsel. In the present case, the court does not find the required exceptional circumstances.

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As to the filing of the second amended complaint, plaintiff has already been granted

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extensions of time totaling more than 230 days, plus the additional time that passed while

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requests were pending. More than two years have passed since this action was filed and more than

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fourteen months have passed since the court dismissed plaintiff’s first amended complaint and

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granted leave to file a second amended complaint. The pending motion for a 180-day extension of

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time was docketed on October 30, 2023, which was the same day on which the court granted

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plaintiff’s previous motion for a 180-day extension of time filed approximately one month earlier.

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The 180 days granted on October 30, 2023, have expired, and plaintiff has neither filed a second

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amended complaint nor provided good cause reasons for a further extension of time.

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Plaintiff’s first amended complaint alleged, generally, that Sacramento County Sheriff’s

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Deputies responded inappropriately to an incident on August 1, 2021, when plaintiff suffered a

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mental health crisis. The pending motion for a 180-day extension of time states plaintiff is

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waiting for the release of “Pitchess” discovery pertaining to his criminal case. See Pitchess v.

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Superior Court, 11 Cal. 3d 531 (1974) (establishing process for discovery of otherwise

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confidential personnel records in California). Personnel records of the involved sheriff’s deputies

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will not assist plaintiff to state a constitutional claim regarding his own treatment by deputies on

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the day in question, even if the records do reveal other similar incidents or other misconduct by

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the deputies involved. As the court previously indicated, a claim under Monell v. Dep’t of Soc.

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Srvs. of New York, 436 U.S. 658 (1978), for alleged policy deficiencies or other theories of entity

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liability would require plaintiff to show that he suffered an individualized constitutional injury.

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See Bd. of Cnty. Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 403-04 (1997) (Monell

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plaintiffs must prove a constitutional injury). Pitchess records will not assist plaintiff to show that

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he suffered an individualized constitutional injury.
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Accordingly, plaintiff has not shown good cause for a further extension of time to file the

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second amended complaint. Moreover, the October 30, 2023 order informed plaintiff that no

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further extensions of time would be granted for the purpose of filing the second amended

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complaint. Nevertheless, because plaintiff constructively filed the pending motion prior to the

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October 30, 2023 order, the court will allow plaintiff 30 days to file the second amended

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complaint before recommending this action be dismissed without prejudice for failure to state a

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claim.

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In accordance with the above, IT IS HEREBY ORDERED as follows:

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1. Plaintiff’s motion for the appointment of counsel (ECF No. 17) is denied.

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2. Plaintiff’s request for a further 180-day extension of time to file a second amended
complaint is denied.

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3. Sua sponte, the court grants plaintiff 30 days to file the second amended complaint;

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failure to file the second amended complaint within this time period will result in a

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recommendation that this action be dismissed without prejudice.

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Dated: June 3, 2024

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DLB7
deol0906.31+36.den

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