(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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY EUGENE DeOLLAS, II, 12 13 14 15 No. 2:22-cv-0906 DB P Plaintiff, v. ORDER COUNTY OF SACRAMENTO, et al., Defendants. 16 17 Plaintiff, a county jail inmate proceeding pro se with a civil rights action, has requested 18 appointment of counsel and a further 180-day extension of time to file a second amended 19 complaint. For the reasons set forth below, these requests are denied. Sua sponte, the court grants 20 plaintiff a final extension of time of 30 days to file a second amended complaint before issuing 21 findings and recommendations to dismiss this action without prejudice. 22 The United States Supreme Court has ruled that district courts lack authority to require 23 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 24 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 25 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 26 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 27 The test for exceptional circumstances requires the court to evaluate the plaintiff’s 28 likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 1 1 light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 2 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 3 common to most prisoners, such as lack of legal education and limited law library access, do not 4 establish exceptional circumstances that would warrant a request for voluntary assistance of 5 counsel. In the present case, the court does not find the required exceptional circumstances. 6 As to the filing of the second amended complaint, plaintiff has already been granted 7 extensions of time totaling more than 230 days, plus the additional time that passed while 8 requests were pending. More than two years have passed since this action was filed and more than 9 fourteen months have passed since the court dismissed plaintiff’s first amended complaint and 10 granted leave to file a second amended complaint. The pending motion for a 180-day extension of 11 time was docketed on October 30, 2023, which was the same day on which the court granted 12 plaintiff’s previous motion for a 180-day extension of time filed approximately one month earlier. 13 The 180 days granted on October 30, 2023, have expired, and plaintiff has neither filed a second 14 amended complaint nor provided good cause reasons for a further extension of time. 15 Plaintiff’s first amended complaint alleged, generally, that Sacramento County Sheriff’s 16 Deputies responded inappropriately to an incident on August 1, 2021, when plaintiff suffered a 17 mental health crisis. The pending motion for a 180-day extension of time states plaintiff is 18 waiting for the release of “Pitchess” discovery pertaining to his criminal case. See Pitchess v. 19 Superior Court, 11 Cal. 3d 531 (1974) (establishing process for discovery of otherwise 20 confidential personnel records in California). Personnel records of the involved sheriff’s deputies 21 will not assist plaintiff to state a constitutional claim regarding his own treatment by deputies on 22 the day in question, even if the records do reveal other similar incidents or other misconduct by 23 the deputies involved. As the court previously indicated, a claim under Monell v. Dep’t of Soc. 24 Srvs. of New York, 436 U.S. 658 (1978), for alleged policy deficiencies or other theories of entity 25 liability would require plaintiff to show that he suffered an individualized constitutional injury. 26 See Bd. of Cnty. Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 403-04 (1997) (Monell 27 plaintiffs must prove a constitutional injury). Pitchess records will not assist plaintiff to show that 28 he suffered an individualized constitutional injury. 2 1 Accordingly, plaintiff has not shown good cause for a further extension of time to file the 2 second amended complaint. Moreover, the October 30, 2023 order informed plaintiff that no 3 further extensions of time would be granted for the purpose of filing the second amended 4 complaint. Nevertheless, because plaintiff constructively filed the pending motion prior to the 5 October 30, 2023 order, the court will allow plaintiff 30 days to file the second amended 6 complaint before recommending this action be dismissed without prejudice for failure to state a 7 claim. 8 In accordance with the above, IT IS HEREBY ORDERED as follows: 9 1. Plaintiff’s motion for the appointment of counsel (ECF No. 17) is denied. 10 11 2. Plaintiff’s request for a further 180-day extension of time to file a second amended complaint is denied. 12 3. Sua sponte, the court grants plaintiff 30 days to file the second amended complaint; 13 failure to file the second amended complaint within this time period will result in a 14 recommendation that this action be dismissed without prejudice. 15 Dated: June 3, 2024 16 17 18 19 DLB7 deol0906.31+36.den 20 21 22 23 24 25 26 27 28 3

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