Woods v. Ayers

Filing 30

ORDER GRANTING LEAVE TO FILE SECOND AMENDED COMPLAINT; SCHEDULING BRIEFING ON PENDING MOTIONS. Signed by Judge Jeffrey S. White on 10/23/12. (jjoS, COURT STAFF) (Filed on 10/23/2012)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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EARNEST C. WOODS, II,

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Plaintiff,
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v.
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ROBERT AYERS, et al.,
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Defendants.
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No. C 11-4730 JSW (PR)
ORDER GRANTING LEAVE TO
FILE SECOND AMENDED
COMPLAINT; SCHEDULING
BRIEFING; ON PENDING
MOTIONS
(Docket Nos. 21, 25)

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Plaintiff, a California prisoner proceeding pro se, filed this pro se civil rights
action pursuant to 42 U.S.C. § 1983.
Good cause appearing, leave for Plaintiff to file his second amended complaint is

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GRANTED. See Fed. R. Civ. P. 15(a). Because Plaintiff has been given two

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opportunities to amend, and prejudice to the defendants in defending this action that

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would be caused by further delay, leave to amend the complaint further will not be

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granted. Plaintiff’s claims against Defendants Wong and Chraft for inadequately

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reviewing his administrative appeals are DISMISSED for failure to state a cognizable

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claim for relief. Plaintiff’s claims against Defendants Curzon, Coleman, Evans,

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Engstrom, Chambers, Guzman, and Burkhart are DISMISSED because he has not

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included them in his Second Amended Complaint as defendants on any of his claims.

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See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.1992) (amended complaint

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supersedes prior complaints and defendants not named in amended complaint are no

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longer defendants); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (same for pro se

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litigants' amended complaint). Plaintiff’s claims against Defendants Ayers, Cahala,

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Frates, Puu, Lee, Schwartz, Arnold, Curry, Young, Lemon, Holland and Thomas are,

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when liberally construed, cognizable.

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Defendants Ayers, Lee, Puu, Schwartz, Curry and Arnold have been served, and

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have answered the first amended complaint. Within 14 days, the appearing defendants

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shall file an amended answer to the second amended complaint.

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The appearing defendants have also filed a motion to dismiss the case under 28

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U.S.C. § 1915(g). The motion is deemed to apply to the second amended complaint. If

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Plaintiff wants to oppose the motion, he must file an opposition on or before November

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19, 2012. Defendants shall file a reply brief within 14 days of the date any opposition is

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filed. The motion, if meritorious, would result in the revocation of Plaintiff’s in forma

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pauperis status and the dismissal of this action as to all defendants if Plaintiff does not

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pay the filing fee. Consequently, service on the non-appearing Defendants will be

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ordered when and if the motion to dismiss is denied.

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Plaintiff’s motion for appointment of counsel (docket number 25) is DENIED.

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There is no constitutional right to counsel in a civil case. Lassiter v. Dep't of Social

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Services, 452 U.S. 18, 25 (1981). 28 U.S.C. § 1915 confers on a district court only the

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power to "request" that counsel represent a litigant who is proceeding in forma pauperis.

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28 U.S.C. § 1915(e)(1). The Court has only the power to ask pro bono counsel to

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represent plaintiff, not the power to “appoint” counsel. Here, plaintiff has presented his

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claims adequately and the issues are not particularly complex.

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Defendants’ motion for an extension of time to file a dispositive motion (docket
number 21) is GRANTED.
IT IS SO ORDERED.
DATED: October 23, 2012
JEFFREY S. WHITE
United States District Judge

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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EARNEST CASSELL WOODS II,

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Case Number: CV11-04730 JSW

Plaintiff,

CERTIFICATE OF SERVICE

v.
ROBERT AYERS et al,
Defendant.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on October 23, 2012, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office
delivery receptacle located in the Clerk's office.

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Earnest C. Woods D 58091
San Quentin Prison
San Quentin, CA 94974

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Dated: October 23, 2012
Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk