1 2 3 4 5 6 7 10 11 EDUARD KAMILCHU, No. 2:21-cv-02245 DB P 12 Plaintiff, 13 v. ORDER 14 COUNTY OF SACRAMENTO, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with this civil rights 18 action seeking relief pursuant to 42 U.S.C. § 1983. Before the court is plaintiff’s second motion 19 for an extension of time to file a third amended complaint (ECF No. 21), which includes a request 20 to appoint counsel should the court deny the motion, and his motion to seal “any attachments, 21 exhibits, or filings containing health information” (ECF No. 22). For the reasons stated below, 22 the court will grant in part and deny in part the motion for extension of time, and deny the motion 23 to seal. 24 I. Background 25 On June 24, 2023, the court dismissed plaintiff’s second amended complaint (ECF No. 26 17) with leave to amend because it did not state any cognizable claims. (ECF No. 18.) Plaintiff 27 was granted thirty days to file a third amended complaint. (Id.) 28 //// 1 On July 17, 2023, plaintiff filed a motion for an extension of time to file a third amended 2 complaint. (ECF No. 19.) In it, he asked the court to extend the deadline to May 15, 2024, or 3 until prison officials granted him access to a computer with a word processor. (Id. at 1.) He cited 4 physical disabilities and health conditions that make it difficult for him to write, and stated that 5 prison officials denied his reasonable accommodation request for access to a computer. (Id. at 2.) 6 On July 28, the court granted in part and denied in part plaintiff’s motion for an extension of time 7 and directed plaintiff to file a third amended complaint no later than sixty days from the date of 8 the order. (ECF No. 20.) It advised plaintiff that “[a]bsent extraordinary circumstances, no 9 further extension of time will be granted for this purpose.” (Id. at 2.) 10 II. Motion for Extension of Time 11 On September 25, 2023,1 plaintiff filed a second motion for an extension of time to file an 12 amended complaint. (ECF No. 21). He again asks the court to extend the deadline to May 15, 13 2024 due to physical disabilities that make writing painful. (Id. at 2.) He believes that, due to 14 these disabilities, “it would take an extraordinary amount of time” to write an amended 15 complaint. (Id.) In support, he attached medical documentation and a copy of his reasonable 16 accommodation request asking prison officials for access to a computer with a keyboard and 17 word processing software. (Id. at 3–11.) In the alternative, he asks the court to stay its July 28, 18 2023 order (ECF No. 20) and to appoint plaintiff counsel “due to the complexity of these 19 matters.” (Id.) 20 Motions for an extension of time are governed by Rule 6 of the Federal Rules of Civil 21 Procedure. Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1258 (9th Cir. 2010). That rule 22 provides:
23 When an act may or must be done within a specified time, the court may, for good cause, extend the time: 24 (A) with or without motion or notice if the court acts, or if a request 25 is made, before the original time or its extension expires; or
26 1 Under the prison mailbox rule, a document is deemed served or filed on the date a prisoner signs 27 the document and gives it to prison officials for mailing. See Houston v. Lack, 487 U.S. 266, 276 (1988) (establishing the prison mailbox rule); Campbell v. Henry, 614 F.3d 105, 1059 (9th Cir. 28 2010) (applying the mailbox rule to both state and federal filings by incarcerated inmates). 1 (B) on motion made after the time has expired if the party failed to act because of excusable neglect. 2 3 Fed. R. Civ. P. 6(b)(1). “[R]equests for extensions of time made before the applicable deadline 4 has passed should ‘normally . . . be granted in the absence of bad faith on the part of the party 5 seeking relief or prejudice to the adverse party.’” Ahanchian, 624 F.3d at 1259. 6 The court finds good cause to grant in part and deny in part plaintiff’s second motion for 7 an extension of time to file an amended complaint. Here, the court directed plaintiff to file a third 8 amended complaint on or before September 26, 2023. (ECF No. 20.) Plaintiff filed the motion 9 for an extension of time on September 25. (ECF No. 21). The motion was therefore timely and 10 the court should grant it “in the absence of bad faith on” plaintiff’s part “or prejudice to the 11 adverse party.’” Ahanchian, 624 F.3d at 1259. 12 Defendants will not be prejudiced, as there is no operative complaint in this action and 13 defendants have yet to be served. (See ECF No. 18.) There is also no evidence that plaintiff has 14 acted in bad faith. However, plaintiff has not shown adequate grounds for extending the deadline 15 to May 15, 2024. The court notes that, in denying plaintiff’s reasonable accommodation request, 16 prison officials informed him that “there are [Americans with Disabilities Act] workers available 17 to help with reading [and] writing to fill out letters” and that “[t]he library is also available for 18 some computer work and assistance.” (ECF No. 21 at 6.) Plaintiff has not explained why these 19 resources are not sufficient to prepare an amended complaint prior to May 2024. 20 Further, plaintiff’s filings do not demonstrate that writing an amended complaint by hand 21 will “take an extraordinary amount of time.” (Id. at 2.) Plaintiff’s first amended complaint 22 consisted of four pages of handwritten allegations, and he filed it within ninety-nine days of the 23 court’s order dismissing the original complaint with leave to amend. (ECF Nos. 10, 13.) His 24 second amended complaint contained five pages of handwritten allegations and was filed within 25 twenty-seven days of the court’s order dismissing the first amended complaint with leave to 26 amend. (ECF Nos. 16, 17.) Collectively, the instant motion for an extension of time and the 27 motion to seal contain eight pages written by hand, which include dated copies of plaintiff’s 28 healthcare grievances. (ECF Nos. 20, 21, 22.) Five of these pages were produced after the 1 court’s July 28, 2023 order granting plaintiff’s first motion for an extension of time. (See ECF 2 No. 21 at 1–2, 4–5; ECF No. 22.) Together, these filings indicate that plaintiff could have filed a 3 third amended complaint of comparable length to the first and second amended complaints, 4 within the time period established by the court’s June 24, 2023 and July 28, 2023 orders. (ECF 5 Nos. 18, 20.) 6 For these reasons, the court will grant plaintiff an additional forty-five days to file a third 7 amended complaint. No further extension of time will be granted for this purpose, and plaintiff is 8 warned that failure to comply with this order will result in a recommendation that this action be 9 dismissed for failure to prosecute and to comply with court orders. 10 III. Request to Appoint Counsel 11 Plaintiff requests that if the court does not extend the deadline to file a third amended 12 complaint to May 15, 2024, the court appoint him counsel. (ECF No. 21 at 2.) The United States 13 Supreme Court has ruled that district courts lack authority to require counsel to represent indigent 14 prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989).
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1 2 3 4 5 6 7 10 11 EDUARD KAMILCHU, No. 2:21-cv-02245 DB P 12 Plaintiff, 13 v. ORDER 14 COUNTY OF SACRAMENTO, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with this civil rights 18 action seeking relief pursuant to 42 U.S.C. § 1983. Before the court is plaintiff’s second motion 19 for an extension of time to file a third amended complaint (ECF No. 21), which includes a request 20 to appoint counsel should the court deny the motion, and his motion to seal “any attachments, 21 exhibits, or filings containing health information” (ECF No. 22). For the reasons stated below, 22 the court will grant in part and deny in part the motion for extension of time, and deny the motion 23 to seal. 24 I. Background 25 On June 24, 2023, the court dismissed plaintiff’s second amended complaint (ECF No. 26 17) with leave to amend because it did not state any cognizable claims. (ECF No. 18.) Plaintiff 27 was granted thirty days to file a third amended complaint. (Id.) 28 //// 1 On July 17, 2023, plaintiff filed a motion for an extension of time to file a third amended 2 complaint. (ECF No. 19.) In it, he asked the court to extend the deadline to May 15, 2024, or 3 until prison officials granted him access to a computer with a word processor. (Id. at 1.) He cited 4 physical disabilities and health conditions that make it difficult for him to write, and stated that 5 prison officials denied his reasonable accommodation request for access to a computer. (Id. at 2.) 6 On July 28, the court granted in part and denied in part plaintiff’s motion for an extension of time 7 and directed plaintiff to file a third amended complaint no later than sixty days from the date of 8 the order. (ECF No. 20.) It advised plaintiff that “[a]bsent extraordinary circumstances, no 9 further extension of time will be granted for this purpose.” (Id. at 2.) 10 II. Motion for Extension of Time 11 On September 25, 2023,1 plaintiff filed a second motion for an extension of time to file an 12 amended complaint. (ECF No. 21). He again asks the court to extend the deadline to May 15, 13 2024 due to physical disabilities that make writing painful. (Id. at 2.) He believes that, due to 14 these disabilities, “it would take an extraordinary amount of time” to write an amended 15 complaint. (Id.) In support, he attached medical documentation and a copy of his reasonable 16 accommodation request asking prison officials for access to a computer with a keyboard and 17 word processing software. (Id. at 3–11.) In the alternative, he asks the court to stay its July 28, 18 2023 order (ECF No. 20) and to appoint plaintiff counsel “due to the complexity of these 19 matters.” (Id.) 20 Motions for an extension of time are governed by Rule 6 of the Federal Rules of Civil 21 Procedure. Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1258 (9th Cir. 2010). That rule 22 provides:
23 When an act may or must be done within a specified time, the court may, for good cause, extend the time: 24 (A) with or without motion or notice if the court acts, or if a request 25 is made, before the original time or its extension expires; or
26 1 Under the prison mailbox rule, a document is deemed served or filed on the date a prisoner signs 27 the document and gives it to prison officials for mailing. See Houston v. Lack, 487 U.S. 266, 276 (1988) (establishing the prison mailbox rule); Campbell v. Henry, 614 F.3d 105, 1059 (9th Cir. 28 2010) (applying the mailbox rule to both state and federal filings by incarcerated inmates). 1 (B) on motion made after the time has expired if the party failed to act because of excusable neglect. 2 3 Fed. R. Civ. P. 6(b)(1). “[R]equests for extensions of time made before the applicable deadline 4 has passed should ‘normally . . . be granted in the absence of bad faith on the part of the party 5 seeking relief or prejudice to the adverse party.’” Ahanchian, 624 F.3d at 1259. 6 The court finds good cause to grant in part and deny in part plaintiff’s second motion for 7 an extension of time to file an amended complaint. Here, the court directed plaintiff to file a third 8 amended complaint on or before September 26, 2023. (ECF No. 20.) Plaintiff filed the motion 9 for an extension of time on September 25. (ECF No. 21). The motion was therefore timely and 10 the court should grant it “in the absence of bad faith on” plaintiff’s part “or prejudice to the 11 adverse party.’” Ahanchian, 624 F.3d at 1259. 12 Defendants will not be prejudiced, as there is no operative complaint in this action and 13 defendants have yet to be served. (See ECF No. 18.) There is also no evidence that plaintiff has 14 acted in bad faith. However, plaintiff has not shown adequate grounds for extending the deadline 15 to May 15, 2024. The court notes that, in denying plaintiff’s reasonable accommodation request, 16 prison officials informed him that “there are [Americans with Disabilities Act] workers available 17 to help with reading [and] writing to fill out letters” and that “[t]he library is also available for 18 some computer work and assistance.” (ECF No. 21 at 6.) Plaintiff has not explained why these 19 resources are not sufficient to prepare an amended complaint prior to May 2024. 20 Further, plaintiff’s filings do not demonstrate that writing an amended complaint by hand 21 will “take an extraordinary amount of time.” (Id. at 2.) Plaintiff’s first amended complaint 22 consisted of four pages of handwritten allegations, and he filed it within ninety-nine days of the 23 court’s order dismissing the original complaint with leave to amend. (ECF Nos. 10, 13.) His 24 second amended complaint contained five pages of handwritten allegations and was filed within 25 twenty-seven days of the court’s order dismissing the first amended complaint with leave to 26 amend. (ECF Nos. 16, 17.) Collectively, the instant motion for an extension of time and the 27 motion to seal contain eight pages written by hand, which include dated copies of plaintiff’s 28 healthcare grievances. (ECF Nos. 20, 21, 22.) Five of these pages were produced after the 1 court’s July 28, 2023 order granting plaintiff’s first motion for an extension of time. (See ECF 2 No. 21 at 1–2, 4–5; ECF No. 22.) Together, these filings indicate that plaintiff could have filed a 3 third amended complaint of comparable length to the first and second amended complaints, 4 within the time period established by the court’s June 24, 2023 and July 28, 2023 orders. (ECF 5 Nos. 18, 20.) 6 For these reasons, the court will grant plaintiff an additional forty-five days to file a third 7 amended complaint. No further extension of time will be granted for this purpose, and plaintiff is 8 warned that failure to comply with this order will result in a recommendation that this action be 9 dismissed for failure to prosecute and to comply with court orders. 10 III. Request to Appoint Counsel 11 Plaintiff requests that if the court does not extend the deadline to file a third amended 12 complaint to May 15, 2024, the court appoint him counsel. (ECF No. 21 at 2.) The United States 13 Supreme Court has ruled that district courts lack authority to require counsel to represent indigent 14 prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In 15 certain exceptional circumstances, the district court may request the voluntary assistance of 16 counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 17 1991); Wood v. Housewright, 900 F.2d 1332, 1335–36 (9th Cir. 1990). 18 The test for exceptional circumstances requires the court to evaluate the plaintiff’s 19 likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 20 light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 21 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 22 common to most prisoners, such as lack of legal education and limited law library access, do not 23 establish exceptional circumstances that would warrant a request for voluntary assistance of 24 counsel. See Klein v. Williams, 714 F. App’x 631, 634 (9th Cir. 2017). 25 Plaintiff argues that he should be appointed counsel “in the interest of justice and due to 26 the complexity of these matters.” (ECF No. 21 at 2.) He has not provided any additional 27 arguments to support the appointment of counsel. 28 //// 1 In the present case, the court does not find the required exceptional circumstances. 2 Wilborn, 789 F.2d at 1331; Weygandt, 718 F.2d at 954. First, for the reasons discussed above, 3 plaintiff has not established that the pain in his hand requires the assistance of counsel to prepare 4 an amended complaint. Second, plaintiff’s claims are not particularly complex. Although the 5 court dismissed plaintiff first amended complaint and second amended complaint for failure to 6 state a cognizable claim,2 it was not due to plaintiff’s inability to articulate his claims; rather, the 7 court found that plaintiff’s factual allegations were insufficient to support an inference that 8 defendants acted in an objectively unreasonable manner or with deliberate indifference, as the 9 Eighth Amendment requires. (ECF No. 16 at 7; ECF No. 18 at 6–9.) 10 Finally, at this early stage in the litigation, when there is no operative complaint, the court 11 cannot assess plaintiff’s likelihood of success on the merits. Accordingly, plaintiff’s request to 12 appoint counsel is denied. 13 IV. Motion to Seal 14 Plaintiff also filed a motion to seal requesting that “any attachments, exhibits or ‘filings 15 containing health information, in this filing, future filings or past, be not made public.’” (ECF 16 No. 22.) Plaintiff is advised that all documents filed with the court are presumptively public. See 17 San Jose Mercury News, Inc. v. U.S. Dist. Court, 187 F.3d 1096, 1103 (9th Cir. 1999). 18 Therefore, documents that are the subject of a protective order may be filed under seal only if a 19 sealing order is first obtained. See Local Rule 141.1. A party seeking to obtain a sealing order 20 shall comply with the provisions of Local Rule 141, which sets forth a specific procedure for 21 seeking a sealing order. After compliance with Local Rule 141, the court will issue an order 22 granting or denying the request to seal. Moreover, Local Rule 140 addresses the limited 23 circumstances in which a party may file redacted documents. 24 Because plaintiff’s motion to seal does not comply with Local Rule 141, the court will 25 deny the motion without prejudice. 26 //// 27 2 The court dismissed the original complaint with leave to amend because the text was illegible. 28 (ECF No. 10 at 2–3.) 1 V. Conclusion 2 IT IS HEREBY ORDERED that: 3 1. Plaintiff's motion for an extension of time (ECF No. 21) is granted in part and denied 4 in part. 5 2. Not later than forty-five days from the date of service of this order, plaintiff shall file a 6 third amended complaint. 7 3. Absent extraordinary circumstances, no further extension of time will be granted for 8 this purpose. 9 4. Plaintiff's request for the appointment of counsel (ECF No. 21) is denied without 10 prejudice. 11 5. Plaintiff's motion to seal (ECF No. 22) is denied without prejudice. 12 6. Failure to comply with this order will result in a recommendation that this action be 13 dismissed. 14 || Dated: October 26, 2023 15 16 U7 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 18 19 20 DDE Prisoner Inbox/Civil Rights/R/kami2245.36.sec 21 22 23 24 25 26 27 28