Thomas v. Hedgpath et al

Filing 36

ORDER by Judge Claudia Wilken GRANTING 32 EXTENSION OF TIME TO FILE OPPOSITION TO MOTION TO DISMISS, GRANTING 34 REQUEST TO STAY DISCOVERY AND DENYING ( 19 , 20 , 21 ) MOTIONS FOR PRELIMINARY INJUNCTION, APPOINTMENT OF COUNSEL AND TO FILE SECOND AMENDED COMPLAINT. Responses due by 9/1/2013. Replies due by 9/15/2013. (Attachments: # 1 Certificate/Proof of Service) (ndr, COURT STAFF) (Filed on 7/22/2013)

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3
4

Plaintiff,

5
6
7
8

Case No.: C 12-3071 CW (PR)

EDWARD THOMAS,

v.
ANTHONY HEDGPATH, et al.,
Defendants.

ORDER GRANTING EXTENSION OF TIME
TO FILE OPPOSITION TO MOTION TO
DISMISS, GRANTING REQUEST TO STAY
DISCOVERY AND DENYING MOTIONS FOR
PRELIMINARY INJUNCTION,
APPOINTMENT OF COUNSEL AND TO
FILE SECOND AMENDED COMPLAINT
(Docket nos. 19, 20, 21, 32, 34)

9

United States District Court
For the Northern District of California

10
11

Plaintiff, a state prisoner, filed this pro se civil rights
action pursuant to 42 U.S.C. § 1983, alleging the violation of his

12
constitutional rights by prison officials and medical staff at
13
14

Salinas Valley State Prison (SVSP).
On April 5, 2013, the Court found that Plaintiff’s

15

allegations state a cognizable claim for deliberate indifference

16

to his serious medical needs and ordered the first amended

17

complaint served on Defendants.

18

dismiss the first amended complaint for failure to state a claim

19

upon which relief may be granted and on the ground that they are

20

entitled to qualified immunity.

21

extension of time to oppose the motion.

22

Plaintiff’s request is GRANTED.

23

Defendants’ counsel his opposition to the motion to dismiss by

24

September 1, 2013.

25

opposition by September 15, 2013.

26

Defendants have filed a motion to

Plaintiff has moved for an
Good cause appearing,

Plaintiff shall file and serve on

Defendants shall file a reply to the

Defendants also move to stay discovery pending resolution of

27

the motion to dismiss.

It is well settled that a stay of

28

discovery should be granted until the threshold question of

1

qualified immunity is decided.

2

800, 818 (1982); Dimartini v. Ferrin, 889 F.2d 922, 926 (9th Cir.

3

1989). Accordingly, Defendants’ request for a stay of discovery is

4

GRANTED.

See Harlow v. Fitzgerald, 457 U.S.

Plaintiff moves for a preliminary injunction prohibiting

5
6

prison officials at SVSP from housing him in a double-cell.

7

Plaintiff filed this action, he was incarcerated at SVSP.

8

Recently, however, Plaintiff notified the Court that he has been

9

transferred to the Substance Abuse Treatment Facility at Corcoran

United States District Court
For the Northern District of California

10
11
12

State Prison.

When

Because Plaintiff no longer is incarcerated at

SVSP, his claim for preliminary injunctive relief is DENIED as
moot.

Further, any claims for injunctive relief pertaining to

Plaintiff’s incarceration at Corcoran State Prison must be brought
13
in the Eastern District, where Corcoran is located.

See 28 U.S.C.

14
§ 1391(b). 28 U.S.C. § 84(b).
15
Plaintiff seeks leave to amend his complaint a second time,
16
17

to add new claims and Defendants.

The claims in the first amended

complaint, to which Defendants have responded, concern Defendants’

18

decision to place Plaintiff in double-cell housing in 2010, in

19

alleged violation of Plaintiff’s Eighth Amendment rights;

20

Plaintiff allegedly exhausted his administrative remedies with

21

respect to these claims in 2011.

22

to include in a second amended complaint concern his having been

23

charged with a disciplinary rules violation in February 2012 for

24

his alleged participation in an inmate riot and being found guilty

25

of that charge at a disciplinary hearing held in September 2012.

26

Plaintiff allegedly exhausted his administrative remedies with

27

respect to these claims in March 2013.

28

The claims that Plaintiff seeks

(Docket no. 19.)

“A party asserting a claim, counterclaim, crossclaim, or
2

1

third-party claim may join, as independent or alternative claims,

2

as many claims as it has against an opposing party.”

3

P. 18(a).

4

here, there are multiple parties.

5

as defendants in one action only “if any right to relief is

6

asserted against them jointly, severally, or in the alternative

7

with respect to or arising out of the same transaction,

8

occurrence, or series of transactions or occurrences; and any

9

question of law or fact common to all defendants will arise in the

United States District Court
For the Northern District of California

10
11
12

action.”

Fed. R. Civ.

However, the rules are somewhat different when, as
Multiple parties may be joined

Fed. R. Civ. P. 20(a)(2).

The Defendants named by Plaintiff in his proposed second
amended complaint are different from the Defendants who have been
served with the first amended complaint.

Further, the claims in

13
the proposed second amended complaint are not based on the same
14
transaction or occurrence or series of transactions and
15
occurrences as the claims in the first amended complaint, and
16
17

there are not questions of law or fact common to all of the
Defendants.

Thus, the allegations in the proposed second amended

18

complaint do not satisfy the joinder requirements under Rule

19

20(a)(2).

20

Defendants in a second amended complaint is DENIED because

21

allowing him to do so would result in the improper joinder of

22

Defendants.

23

Plaintiff from filing a new and separate action asserting the

24

claims raised in his proposed second amended complaint.

25

Accordingly, Plaintiff’s request to add new claims and

See Fed. R. Civ. P. 21.

This order does not preclude

Finally, Plaintiff moves for the appointment of counsel to

26

represent him in this action.

There is no constitutional right to

27

counsel in an action brought pursuant to 42 U.S.C. § 1983.

28
3

Rand

1

v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997).

2

ask counsel to represent an indigent litigant under 28 U.S.C.

3

§ 1915 only in “exceptional circumstances,” the determination of

4

which requires an evaluation of both (1) the likelihood of success

5

on the merits, and (2) the ability of the plaintiff to articulate

6

his claims pro se in light of the complexity of the legal issues

7

involved.

8

before reaching a decision on a request for counsel under § 1915.

9

Id.

United States District Court
For the Northern District of California

10
11
12

Id.

The court may

Both of these factors must be viewed together

The Court is unable to assess at this time whether
exceptional circumstances exist that warrant seeking volunteer
counsel to accept a pro bono appointment.

The proceedings are at

an early stage and it is premature for the Court to determine
13
Plaintiff’s likelihood of success on the merits.

Accordingly, the

14
request for appointment of counsel is DENIED without prejudice to
15
the Court’s considering at a later stage of the proceedings
16
17
18
19

whether appointment of counsel is warranted.
This order terminates Docket nos. 19, 20, 21, 32 and 34.
IT IS SO ORDERED.
Dated: 7/22/2013
________________________
CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE

20
21
22
23
24
25
26
27
28
4