Luke 130646 v. Milburn

• Court: District Court, D. Arizona
• Decided: March 12, 2021
• Docket: 2:20-cv-02254
• Status: Unknown

Opinion

1 WO JL 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Tyerel Darnel Luke, No. CV 20-02254-PHX-JAT (JZB) 10 Plaintiff, 11 v. ORDER 12 C. Milburn, et al., 13 Defendants.

14 15 On November 23, 2020, Plaintiff Tyerel Darnel Luke, who is confined in the 16 Arizona State Prison Complex-Eyman, filed a pro se civil rights Complaint pursuant to 42 17 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. In a December 3, 2020 18 Order, the Court denied the deficient Application to Proceed and gave Plaintiff 30 days to 19 pay the filing and administrative fees or file a complete Application to Proceed In Forma 20 Pauperis and a certified six-month trust account statement. 21 On December 23, 2020, Plaintiff filed a Motion for Extension of Time to file an 22 Application to Proceed In Forma Pauperis, which the Court granted in a January 7, 2021 23 Order. 24 On February 5, 2021, Plaintiff filed a Motion requesting an extension of time to file 25 an Application to Proceed In Forma Pauperis and a “Motion and Emergency” (Doc. 11), 26 in which Plaintiff threatened to kill prison officials and then himself. In a February 19, 27 2021 Order, the Court granted Plaintiff an additional 30 days to pay the filing and 28 administrative fees or file a complete Application to Proceed In Forma Pauperis and a 1 certified six-month trust account statement. In a February 23, 2021 Order, the Court 2 directed the Clerk of Court to send copies of Plaintiff’s “Motion and Emergency” to the 3 Arizona Attorney General, counsel for Centurion, the Arizona Department of Corrections 4 Central Office, and counsel for the parties in Parsons v. Ryan, CV 12-00601-PHX-ROS. 5 On March 2, 2021, Plaintiff filed a “Motion and Still Emergency” (Doc. 18) and a 6 certified six-month trust account statement. However, Plaintiff has not filed an Application 7 to Proceed In Forma Pauperis, as required by the December 3, 2020 Order. 8 I. Pending Motions 9 A. Motion and Emergency 10 In his February 5, 2021 Motion and Emergency, Plaintiff asks the Court to “take 11 some protective actions” to prevent prison officers from “provoking” and “abusing 12 [Plaintiff’s] mind.” Plaintiff appears to request that the Court order the Arizona 13 Department of Corrections (ADC) to move him to the Arizona State Hospital for 14 emergency treatment. 15 The Court will deny the Motion and Emergency. If Plaintiff wishes to assert 16 additional claims for alleged violations of his constitutional rights, he must do so in an 17 amended complaint. In addition, the Court cannot order ADC to move Plaintiff to the 18 Arizona State Hospital. 19 B. Motion and Still Emergency 20 In his March 2, 2021 Motion and Still Emergency, Plaintiff asserts that Correctional 21 Officer III Schneider threatened Plaintiff “concerning [Plaintiff’s] aunt.” Plaintiff states 22 that he made a “piss bomb” to protect himself if “they rush [his] cell.” Plaintiff states that 23 on February 26, 2021, he saw a new psychiatrist to discuss his concerns regarding better 24 treatment and why he did not want to return to the Seriously Mentally Ill yards. Plaintiff 25 told the psychiatrist that he would “try to work with him,” but when Plaintiff returned to 26 his cell, he “knew” the psychiatrist was “setting [him] up.” Plaintiff claims “these doctors 27 work with these cops and are friends with them.” Plaintiff states that he does not “want to 28 hurt anyone,” but his “thinking tells [him]” that if he “kill[s] them, [he] will get help[].” 1 Plaintiff requests appointment of counsel. 2 With respect to Plaintiff’s request for appointment of counsel, there is no 3 constitutional right to the appointment of counsel in a civil case. See Ivey v. Bd. of Regents, 4 673 F.2d 266, 269 (9th Cir. 1982). In proceedings in forma pauperis, the court may request 5 an attorney to represent any person unable to afford one. 28 U.S.C. § 1915(e)(1). 6 Appointment of counsel under 28 U.S.C. § 1915(e)(1) is required only when “exceptional 7 circumstances” are present. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A 8 determination with respect to exceptional circumstances requires an evaluation of the 9 likelihood of success on the merits as well as the ability of Plaintiff to articulate his claims 10 pro se in light of the complexity of the legal issue involved. Id. “Neither of these factors 11 is dispositive and both must be viewed together before reaching a decision.” Id. (quoting 12 Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 13 Having considered both elements, it does not appear at this time that exceptional 14 circumstances are present that would require the appointment of counsel in this case. 15 Plaintiff is in no different position than many pro se prisoner litigants. Thus, the Court will 16 deny Plaintiff’s request for appointment of counsel. The Court will also deny the Motion 17 to the extent that it seeks any other relief. 18 The Court, in its discretion, will grant Plaintiff an additional 30 days to file an 19 Application to Proceed In Forma Pauperis. Plaintiff does not need to file another 20 certified six-month trust account statement. 21 II. Warnings 22 A. Address Changes 23 Plaintiff must file and serve a notice of a change of address in accordance with Rule 24 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 25 relief with a notice of change of address. Failure to comply may result in dismissal of this 26 action. 27 B. Possible Dismissal 28 If Plaintiff fails to timely comply with every provision of this Order, including these 1| warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 2| 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order of the Court). 4| ITIS ORDERED: 5 (1) Plaintiff’s Motions (Docs. 11, 18) are denied. 6 (2) Plaintiff has 30 days from the filing date of this Order to file a complete 7 | Application to Proceed In Forma Pauperis. 8 (3) — If Plaintiff fails to file an Application to Proceed In Forma Pauperis within 9| 30 days, the Clerk of Court must enter a judgment of dismissal of this action without 10 | prejudice and without further notice to Plaintiff and deny any pending unrelated motions 11 | as moot. 12 Dated this 12th day of March, 2021. 13 14 a 15 16 _ James A. Teil Org Senior United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28