Gann v. Neotti et al

Filing 45

ORDER: Granting 43 Motion for Extension of Time to File Response re 35 MOTION to Dismiss Plaintiff's First, Eighth, and Fourteenth Amendment Claims for Failure to Exhaust Administrative Remedies; and Denying 44 Motion for Reconsider ation of Order Denying Motion to Appoint Counsel. For good cause shown, the Court grants Plaintiff 60 days from the date of the original hearing date to file an opposition to the Motion to Dismiss. Plaintiff must file her Response in Opposition by 6/11/2010. Signed by Magistrate Judge Nita L. Stormes on 5/20/2010. (All non-registered users served via U.S. Mail Service)(leh)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ) ) ) ) Plaintiff, ) v. ) ) GEORGE A. NEOTTI, Warden; G. ) PEDERSON, Correctional Lieutenant; B. ) MORRIS, Correctional Captain; M. VIRGEN, Correctional Officer; John Does 1- ) ) 20; MATTHEW CATE, Director of ) Corrections; ROBERT J. HERNANDEZ, ) Warden; K. SPENCE, Correctional ) Lieutenant; E. GARCIA, Correctional ) Sergeant; E. MARRERO, Correctional ) Captain; W. BEAUCHEMIN, Correctional Lieutenant; W. LILES, Correctional Sergeant, ) ) ) Defendants. ) JOHN DAVID GANN, also known as JENNIFER GANN, Civil No. 09cv1703 MMA (NLS) ORDER: (1) GRANTING MOTION FOR EXTENSION OF TIME [Doc. No. 43]; and (2) DENYING MOTION FOR RECONSIDERATION OF ORDER DENYING MOTION TO APPOINT COUNSEL [Doc. No. 44].

John David Gann, aka Jennifer Gann (Plaintiff), a prisoner proceeding pro se and in forma pauperis, filed this civil rights action under the Civil Rights Act, 42 U.S.C. § 1983. Plaintiff is biologically male but identifies as a transgender female, and is on a regimen of hormone therapy. (Second Amended Complaint (SAC at ¶ 16.)1 Plaintiff alleges Defendants have violated Plaintiff's civil rights by discriminating and harassing her based on her transgender status, inflicting cruel and unusual punishment via deprivation of outdoor exercise and indifference to medical need, and denying her equal

The SAC refers to Plaintiff as "she" and, for consistency, the Court will also refer to Plaintiff as 1
09cv1703 MMA (NLS)

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protection under the law by failing to treat Plaintiff equally to biological women. Request for Extension of Time. On March 5, 2010, defendants Beauchemin, Cate, Garcia, Hernandez, Liles, Marrero, Morris, Neotti, Pederson, Spence and Virgen filed a motion to dismiss Plaintiff's first, eighth and fourteenth amendment claims for failure to exhaust administrative remedies. The court set a hearing date for April 12, 2010. On March 10, 2010, Plaintiff was transferred from Richard J. Donovan Correctional Facility (Donovan) to California Correctional Institute (CCI) in Tehachapi, California. Due to the move, Plaintiff did not have full access to her personal property. Gann Decl. ¶ 2. On May 10, 2010, Plaintiff filed a request for an additional 60 days to file an opposition to the motion to dismiss. For good cause shown, the court GRANTS Plaintiff 60 days from the date of the original hearing date to file an opposition. Therefore, Plaintiff must file her opposition by June 11, 2010. Motion for Reconsideration. On April 13, 2010, this court denied Plaintiff's motion for appointment of counsel. On May 13, 2010 Plaintiff filed a motion for reconsideration, arguing that "exceptional circumstances" warrant the appointment of counsel here based on Plaintiff being transferred from Donovan to CCI and not having access to all her personal property, including legal materials, papers and documentary evidence. The court may relieve a party from an order for reasons of mistake, inadvertence or excusable neglect. Fed. R. Civ. Proc. 60(b). Here, Plaintiff offers no reasons for the court to reconsider its order denying appointment of counsel. Further, to make a finding of "exceptional circumstances" under Terrell v. Brewer, 935 F.2d 1015(9th Cir.1991) "requires an evaluation of both the `likelihood of success on the merits [and] the ability of the petitioner to articulate [her] claims pro se in light of the complexity of the legal issues involved.''" Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997). The fact that Plaintiff has moved and for a time did not have access to all her personal property, including legal materials, does not constitute the "exceptional circumstances" that would warrant appointment of counsel. The court, therefore, DENIES Plaintiff's motion for reconsideration. IT IS SO ORDERED. DATED: May 20, 2010 Hon. Nita L. Stormes U.S. Magistrate Judge 2
09cv1703 MMA (NLS)