1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DARYL HICKS, No. 2:22-cv-0903 TLN CSK P 12 Plaintiff, 13 v. ORDER 14 PLESHCHUK, et al., 15 Defendants. 16 17 Plaintiff is a former state prisoner proceeding pro se in an action brought under 42 U.S.C. 18 § 1983. Plaintiff seeks the appointment of counsel. 19 I. BACKGROUND 20 This action proceeds on plaintiff’s second amended complaint against defendants 21 Pleshchuk and Powell, alleging that each defendant was deliberately indifferent to plaintiff’s 22 serious mental health needs in violation of the Eighth Amendment. 23 On July 16, 2024, the Court issued a discovery and scheduling order, setting the discovery 24 deadline for November 22, 2024, and the pretrial motions deadline for February 28, 2025. (ECF 25 No. 39.) On October 31, 2024, the Court granted defendant Pleshchuk’s first motion for limited 26 modification of the discovery and scheduling order, and extended the deadlines to (1) serve 27 deposition notices to December 23, 2024; (2) complete depositions to January 6, 2025; and 28 (3) file motions to compel to January 6, 2025. (ECF No. 41.) 1 On November 21, 2024, counsel for defendant Powell filed a motion to compel discovery 2 responses alleging that plaintiff failed to timely respond to two sets of written discovery served on 3 plaintiff on August 8, 2024, and also did not return signed authorization forms to obtain plaintiff’s 4 inmate files sent to plaintiff on October 18, 2024. (ECF No. 42-1 at 1.) Plaintiff filed an 5 opposition on December 30, 2024, and defendant Powell filed a reply on January 8, 2025. (ECF 6 Nos. 49, 50.) 7 On December 16, 2024, the Court granted defendant Pleshchuk’s second motion to 8 modify the scheduling order, extending the deadline to serve deposition notices to February 6, 9 2025, and the deadline to file motions to compel to February 20, 2025. (ECF No. 47.) The 10 pretrial motions deadline was extended to April 28, 2025. (Id.) 11 On January 24, 2025, defendant Pleshchuk filed a motion to compel discovery after 12 defendant had granted plaintiff multiple extensions of time to comply with the written discovery 13 requests. (ECF No. 52 at 2.) Both defendants needed to review written discovery responses 14 before deposing plaintiff. (See ECF No. 46 at 5, 10; 52 at 8.) On January 24, 2025, defendant 15 Pleshchuk also filed a motion to modify the scheduling order. (ECF No. 52.) On February 4, 16 2025, the Court granted the third motion to modify the scheduling order, and the Court vacated all 17 pending deadlines and directed plaintiff to file a change of address within thirty days. (ECF No. 18 53.) 19 On February 27, 2025, defendant Pleshchuk filed a motion to revoke plaintiff’s in forma 20 pauperis status in light of plaintiff’s release from state prison. (ECF No. 56.) On March 10, 21 2025, the Court granted plaintiff’s February 28, 2025 motion for extension of time, and plaintiff 22 was ordered to file, within thirty days, an opposition to defendant Pleshchuk’s motion to compel 23 discovery and motion to revoke, and a current application to proceed in forma pauperis. (ECF 24 No. 58.) Plaintiff’s copy of the order was returned as undeliverable. On April 21, 2025, the 25 Court ordered plaintiff to show cause, within 21 days, why this action should not be dismissed for 26 lack of prosecution. (ECF No. 59.) 27 On April 21, 2025, plaintiff filed a notice of change of address and a motion to appoint 28 counsel, which was entered on the Court’s docket on April 22, 2025. (ECF No. 60.) Plaintiff 1 paroled from state prison on January 5, 2025. (ECF No. 60 at 1.) Plaintiff was “homeless for 2 many days” until he was provided housing at a halfway house in Buena Park, California. (ECF 3 No. 60 at 1.) On February 10, 2025, plaintiff was kicked out of the halfway house. (Id.) On 4 February 17, 2025, while checking in with his parole officer, plaintiff was arrested for not 5 reporting as homeless. (Id.) Plaintiff was released from Jail on March 5, 2025, and was again 6 homeless for a few days. (Id.) A few days after his release from jail, plaintiff was again provided 7 housing at a halfway house, but this time in Orange, California. (Id.) Plaintiff states he suffers 8 from extreme depression and severe anxiety, and while he was in prison, he was in the Enhanced 9 Outpatient Program. (Id.) Plaintiff claims his mental health is unstable and he is in “dire need of 10 legal representation.” (Id.) 11 II. MOTION FOR APPOINTMENT OF COUNSEL 12 Plaintiff seeks the appointment of counsel. District courts lack authority to require 13 counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. 14 Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney 15 to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 16 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). But 17 without a reasonable method of securing and compensating counsel, the Court will seek volunteer 18 counsel only in the most serious and exceptional cases. When determining whether “exceptional 19 circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as 20 well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the 21 legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not 22 abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional 23 circumstances is on the plaintiff. Id. Circumstances common to many prisoners, former and 24 current, such as lack of legal education and mental health issues, do not establish exceptional 25 circumstances that warrant a request for voluntary assistance of counsel. 26 At this juncture, the Court is unable to determine plaintiff’s likelihood of success on the 27 merits of his Eighth Amendment claims. Moreover, the record reflects that plaintiff is able to 28 articulate his claims, which involve discrete issues of whether either defendant was deliberately 1 indifferent to plaintiff’s serious mental health needs. (ECF No. 16 at 4.) Having considered the 2 factors under Palmer, the Court finds that plaintiff failed to meet his burden of demonstrating 3 exceptional circumstances warranting the appointment of counsel at this time. Plaintiff’s motion 4 is denied without prejudice. 5 III. MOTION TO REVOKE 6 Defendant Pleshchuk moved to revoke plaintiff’s in forma pauperis status since he is no 7 longer a prisoner, and require him to pay the remainder of the filing fee before proceeding with 8 this action. (ECF No. 56 at 5.) However, according to the Court’s Financial Department, 9 plaintiff has paid the $350.00 filing fee in full. Therefore, defendant’s motion is denied as moot. 10 III. OUTSTANDING ISSUES 11 In light of plaintiff’s April 21, 2025 filing, the order to show cause is discharged. 12 Considering plaintiff’s subsequent periods of homelessness, it is unclear whether plaintiff has 13 retained his files relevant to this action. Nevertheless, as a pro se litigant, plaintiff is required to 14 diligently prosecute this action. As a one-time courtesy, the Court will direct the Clerk’s Office 15 to provide a copy of defendant Pleshchuk’s motion to compel discovery responses.
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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 DARYL HICKS, No. 2:22-cv-0903 TLN CSK P 12 Plaintiff, 13 v. ORDER 14 PLESHCHUK, et al., 15 Defendants. 16 17 Plaintiff is a former state prisoner proceeding pro se in an action brought under 42 U.S.C. 18 § 1983. Plaintiff seeks the appointment of counsel. 19 I. BACKGROUND 20 This action proceeds on plaintiff’s second amended complaint against defendants 21 Pleshchuk and Powell, alleging that each defendant was deliberately indifferent to plaintiff’s 22 serious mental health needs in violation of the Eighth Amendment. 23 On July 16, 2024, the Court issued a discovery and scheduling order, setting the discovery 24 deadline for November 22, 2024, and the pretrial motions deadline for February 28, 2025. (ECF 25 No. 39.) On October 31, 2024, the Court granted defendant Pleshchuk’s first motion for limited 26 modification of the discovery and scheduling order, and extended the deadlines to (1) serve 27 deposition notices to December 23, 2024; (2) complete depositions to January 6, 2025; and 28 (3) file motions to compel to January 6, 2025. (ECF No. 41.) 1 On November 21, 2024, counsel for defendant Powell filed a motion to compel discovery 2 responses alleging that plaintiff failed to timely respond to two sets of written discovery served on 3 plaintiff on August 8, 2024, and also did not return signed authorization forms to obtain plaintiff’s 4 inmate files sent to plaintiff on October 18, 2024. (ECF No. 42-1 at 1.) Plaintiff filed an 5 opposition on December 30, 2024, and defendant Powell filed a reply on January 8, 2025. (ECF 6 Nos. 49, 50.) 7 On December 16, 2024, the Court granted defendant Pleshchuk’s second motion to 8 modify the scheduling order, extending the deadline to serve deposition notices to February 6, 9 2025, and the deadline to file motions to compel to February 20, 2025. (ECF No. 47.) The 10 pretrial motions deadline was extended to April 28, 2025. (Id.) 11 On January 24, 2025, defendant Pleshchuk filed a motion to compel discovery after 12 defendant had granted plaintiff multiple extensions of time to comply with the written discovery 13 requests. (ECF No. 52 at 2.) Both defendants needed to review written discovery responses 14 before deposing plaintiff. (See ECF No. 46 at 5, 10; 52 at 8.) On January 24, 2025, defendant 15 Pleshchuk also filed a motion to modify the scheduling order. (ECF No. 52.) On February 4, 16 2025, the Court granted the third motion to modify the scheduling order, and the Court vacated all 17 pending deadlines and directed plaintiff to file a change of address within thirty days. (ECF No. 18 53.) 19 On February 27, 2025, defendant Pleshchuk filed a motion to revoke plaintiff’s in forma 20 pauperis status in light of plaintiff’s release from state prison. (ECF No. 56.) On March 10, 21 2025, the Court granted plaintiff’s February 28, 2025 motion for extension of time, and plaintiff 22 was ordered to file, within thirty days, an opposition to defendant Pleshchuk’s motion to compel 23 discovery and motion to revoke, and a current application to proceed in forma pauperis. (ECF 24 No. 58.) Plaintiff’s copy of the order was returned as undeliverable. On April 21, 2025, the 25 Court ordered plaintiff to show cause, within 21 days, why this action should not be dismissed for 26 lack of prosecution. (ECF No. 59.) 27 On April 21, 2025, plaintiff filed a notice of change of address and a motion to appoint 28 counsel, which was entered on the Court’s docket on April 22, 2025. (ECF No. 60.) Plaintiff 1 paroled from state prison on January 5, 2025. (ECF No. 60 at 1.) Plaintiff was “homeless for 2 many days” until he was provided housing at a halfway house in Buena Park, California. (ECF 3 No. 60 at 1.) On February 10, 2025, plaintiff was kicked out of the halfway house. (Id.) On 4 February 17, 2025, while checking in with his parole officer, plaintiff was arrested for not 5 reporting as homeless. (Id.) Plaintiff was released from Jail on March 5, 2025, and was again 6 homeless for a few days. (Id.) A few days after his release from jail, plaintiff was again provided 7 housing at a halfway house, but this time in Orange, California. (Id.) Plaintiff states he suffers 8 from extreme depression and severe anxiety, and while he was in prison, he was in the Enhanced 9 Outpatient Program. (Id.) Plaintiff claims his mental health is unstable and he is in “dire need of 10 legal representation.” (Id.) 11 II. MOTION FOR APPOINTMENT OF COUNSEL 12 Plaintiff seeks the appointment of counsel. District courts lack authority to require 13 counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. 14 Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney 15 to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 16 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). But 17 without a reasonable method of securing and compensating counsel, the Court will seek volunteer 18 counsel only in the most serious and exceptional cases. When determining whether “exceptional 19 circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as 20 well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the 21 legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not 22 abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional 23 circumstances is on the plaintiff. Id. Circumstances common to many prisoners, former and 24 current, such as lack of legal education and mental health issues, do not establish exceptional 25 circumstances that warrant a request for voluntary assistance of counsel. 26 At this juncture, the Court is unable to determine plaintiff’s likelihood of success on the 27 merits of his Eighth Amendment claims. Moreover, the record reflects that plaintiff is able to 28 articulate his claims, which involve discrete issues of whether either defendant was deliberately 1 indifferent to plaintiff’s serious mental health needs. (ECF No. 16 at 4.) Having considered the 2 factors under Palmer, the Court finds that plaintiff failed to meet his burden of demonstrating 3 exceptional circumstances warranting the appointment of counsel at this time. Plaintiff’s motion 4 is denied without prejudice. 5 III. MOTION TO REVOKE 6 Defendant Pleshchuk moved to revoke plaintiff’s in forma pauperis status since he is no 7 longer a prisoner, and require him to pay the remainder of the filing fee before proceeding with 8 this action. (ECF No. 56 at 5.) However, according to the Court’s Financial Department, 9 plaintiff has paid the $350.00 filing fee in full. Therefore, defendant’s motion is denied as moot. 10 III. OUTSTANDING ISSUES 11 In light of plaintiff’s April 21, 2025 filing, the order to show cause is discharged. 12 Considering plaintiff’s subsequent periods of homelessness, it is unclear whether plaintiff has 13 retained his files relevant to this action. Nevertheless, as a pro se litigant, plaintiff is required to 14 diligently prosecute this action. As a one-time courtesy, the Court will direct the Clerk’s Office 15 to provide a copy of defendant Pleshchuk’s motion to compel discovery responses. Plaintiff is 16 granted one final extension of time to file an opposition to defendant Pleshchuk’s motion to 17 compel discovery responses. The Court is not inclined to further extend this deadline. Plaintiff is 18 cautioned that failure to oppose the motion may result in an order granting the motion. 19 Once the Court has addressed the pending discovery motions, the Court will issue a final 20 revised scheduling order. 21 Accordingly, IT IS HEREBY ORDERED that: 22 1. Plaintiff’s motion for the appointment of counsel (ECF No. 60) is denied without 23 prejudice. 24 2. Defendant Pleshchuk’s motion to revoke plaintiff’s in forma pauperis status (ECF No. 25 56) is denied as moot. 26 3. The order to show cause (ECF No. 59) is discharged. 27 4. Plaintiff is granted 30 days from the date of this order in which to file an opposition to 28 defendant Pleshchuk’s motion to compel discovery responses (ECF No. 51). Failure to oppose 1 | the motion may result in an order granting the motion to compel discovery responses. 2 5. The Clerk of the Court is directed to send plaintiff a copy of the Court’s docket, 3 || including the first page that lists counsel and their addresses and phone numbers, and a copy of 4 | defendant Pleshchuk’s motion to compel discovery responses (ECF No. 51). 5 6 || Dated: May 5, 2025 4 a 1 Cnn Spe \L CHI SOO KIM 8 UNITED STATES MAGISTRATE JUDGE 9 /1/hick0903.31+ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28