1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LY TRI, Case No.: 1:22-cv-00836-ADA-SKO (PC) 12 Plaintiff, ORDER VACATING FINDINGS AND 13 v. RECOMMENDATIONS TO DISMISS THIS ACTION FOR PLAINTIFF’S 14 C. GUTIERREZ, et al., FAILURE TO OBEY COURT ORDERS AND FAILURE TO PROSECUTE 15 Defendants. (Doc. 23) 16 ORDER DIRECTING PLAINTIFF TO 17 FILE OPPOSITION TO MOTION TO DISMISS WITHIN 30 DAYS 18 ORDER DENYING REQUEST FOR 19 APPOINTMENT OF COUNSEL
20 21 Plaintiff Ly Tri is proceeding pro se in this civil rights action brought pursuant to 42 22 U.S.C. § 1983. 23 I. RELEVANT BACKGROUND 24 Plaintiff initiated this action with the filing of his complaint on July 8, 2022. (Doc. 1.) 25 Following screening and service of process, the action proceeded on Plaintiff’s First 26 Amendment retaliation claim against Defendant D. Gutierrez and Fourteenth Amendment due 27 process claim against Defendant J. McNutt. (See Docs. 9 & 10.) 1 On July 26, 2023, Defendant McNutt filed a motion to dismiss for lack of subject matter 2 jurisdiction. (See Doc. 16.) Pursuant to Local Rule 230(l), Plaintiff’s opposition or statement of 3 non-opposition to the motion was to be filed “not more than twenty-one (21) days after the date of 4 service of the motion.” Although more than 21 days have passed, Plaintiff has not filed an 5 opposition or a statement of non-opposition to Defendant’s motion. 6 On July 31, 2023, the Court granted Defendant Gutierrez’s motion to stay the responsive 7 pleading deadline as to Gutierrez or jointly as to Gutierrez and McNutt pending the outcome of 8 Defendant McNutt’s motion to dismiss. (Doc. 18.) 9 On August 23, 2023, this Court issued its “Order to Show Cause (“OSC”) in Writing Why 10 Action Should Not be Dismissed for Failure to Obey Court Orders.” (Doc. 20.) Plaintiff was 11 ordered to respond within 21 days, to show cause why the action should not be dismissed, or, 12 alternatively, to file his opposition or statement of non-opposition to the pending motion to 13 dismiss. (Id. at 2.) More than 21 days elapsed, and Plaintiff failed to respond to the OSC. 14 On September 20, 2023, the Court issued Findings and Recommendations to dismiss this 15 action for Plaintiff’s failure to obey court orders and failure to prosecute. (Doc. 23.) Plaintiff was 16 ordered to file any objections within 14 days. (Id. at 4-5.) On October 16, 2023,1 Plaintiff filed 17 his objections. (Doc. 25.) 18 II. DISCUSSION 19 In his objections, Plaintiff apologizes for failing to comply with the Court’s OSC and 20 states he is “new to all these rules and court procedural” and is “lost and confuse[d].” (Doc. 25 at 21 1.) Plaintiff contends he has sought legal advice from other prisoners “which lead to failure to 22 obey court order.” (Id.) He states he “need helps, or a little more time to find someone to help” 23 him with “this court’s order, and all them rules and court procedural.” (Id.) Plaintiff asserts 24 Defendant McNutt’s motion to dismiss should be denied because his due process rights have been 25 denied and McNutt’s “corporal punishment against the Plaintiff” violated the “8th Amendment.” 26 (Id. at 1-2.) Plaintiff contends he “served and suffered the full affect” of the constitutional 27 violation and “the defendant should not pro se punish.” (Id. at 2.) He asserts the law is based on 1 “commonsense and fairness” and no one is above the law. (Id.) Plaintiff contends his ”mail is 2 being reround from prison to prison” before it is delivered to him. (Id.) He has been transferred 3 recently from Kern Valley State Prison to Centinela State Prison and his legal mail, including the 4 Court’s findings, was not delivered until October 6, 2023. (Id.) Plaintiff contends he is doing 5 everything he can “to get this document out as soon” as he can, and that he was told he had “to 6 make copy for the Attorney General but [his] access to the law library is limited.” (Id.) 7 A. The Findings and Recommendations Will Be Vacated 8 In this Court’s Findings and Recommendations issued September 20, 2023, Plaintiff was 9 ordered to file any objections within 14 days of the date of service. (Doc. 23.) On October 11, 10 2023, Plaintiff served his objections to the Court’s findings. (Doc. 25.) Although Plaintiff’s 11 objections are untimely by almost two weeks, the Court will vacate its Findings and 12 Recommendations to dismiss this action because Plaintiff contends he did not receive his legal 13 mail until October 6, 2023, and was unable to respond in a timely fashion. 14 B. Plaintiff’s Must File An Opposition To Defendant McNutt’s Motion to Dismiss Within 30 Days 15 16 Defendant McNutt filed a motion to dismiss on July 26, 2023. (Doc. 16.) That motion has 17 been pending for nearly three months without a response from Plaintiff. Plaintiff will be given 18 one final opportunity to file an opposition to the motion to dismiss. 19 The Court is aware that Plaintiff is proceeding pro se and is unfamiliar with court rules 20 and procedures. It is however Plaintiff’s obligation to follow court rules and procedures, despite 21 his pro se status. Plaintiff was advised in the First Informational Order in Prisoner/Civil Detainee 22 Civil Rights Case, issued July 11, 2022, that he “must comply” with the Federal Rules of Civil 23 Procedure and this Court’s Local Rules. (Doc. 3 at 1.) Plaintiff was warned that a failure to 24 comply would “be grounds for imposition of sanctions which may include dismissal of the case.” 25 (Id.) Plaintiff was also advised that once “an attorney for a defendant appears in a pro se 26 plaintiff’s civil rights action (by filing an answer, a motion to dismiss, a motion for summary 27 judgment, etc.), that attorney’s office will receive notice of all filing through the Court’s 1 defendant; the date of the electronic Notice from ECM/ECF is the date of service.” (Id. at 4, 2 emphasis added.) Plaintiff was also warned that he “must keep the Court and opposing parties 3 informed of [his] correct address” and that if he “moves to a different address without filing and 4 serving a notice of change of address, documents served at [his] old address of record shall be 5 deemed received even if not actually received.” (Id. at 5.) 6 Plaintiff initiated this action by filing his complaint and must timely prosecute his case. It 7 is Plaintiff’s obligation to familiarize himself with the applicable rules and procedures to the best 8 of his ability—an obligation that extends to all pro se plaintiffs. Plaintiff is encouraged to 9 carefully review the Court’s First Informational Order issued and served on July 11, 2022. 10 Next, as noted above, Plaintiff is not required to “make [a] copy for the Attorney General” 11 (Doc. 25 at 2) of any document he serves because the Attorney General’s Office will receive the 12 document through ECM/ECF on the same date it is filed with the Court. 13 The Court notes Plaintiff has failed to file a notice of change of address despite being 14 directed to do so in the First Informational Order.2 Instead, Plaintiff’s objections reference a 15 transfer from Kern Valley State Prison, the address on currently on file with the Court, to 16 Centinela State Prison. (Doc. 25 at 2.) That reference is insufficient to provide the Court and the 17 opposing parties with notice of Plaintiff’s change of address. As a one-time courtesy, the Court 18 will direct the Clerk of the Court to change Plaintiff’s address to reflect the fact he is now housed 19 at Centinela State Prison. However, Plaintiff is warned that if he is transferred from Centinela 20 State Prison to another facility and fails to file a notice of change of address, as advised in the 21 First Informational Order, any documents served to Plaintiff’s old address will be deemed 22 received even if not actually received.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LY TRI, Case No.: 1:22-cv-00836-ADA-SKO (PC) 12 Plaintiff, ORDER VACATING FINDINGS AND 13 v. RECOMMENDATIONS TO DISMISS THIS ACTION FOR PLAINTIFF’S 14 C. GUTIERREZ, et al., FAILURE TO OBEY COURT ORDERS AND FAILURE TO PROSECUTE 15 Defendants. (Doc. 23) 16 ORDER DIRECTING PLAINTIFF TO 17 FILE OPPOSITION TO MOTION TO DISMISS WITHIN 30 DAYS 18 ORDER DENYING REQUEST FOR 19 APPOINTMENT OF COUNSEL
20 21 Plaintiff Ly Tri is proceeding pro se in this civil rights action brought pursuant to 42 22 U.S.C. § 1983. 23 I. RELEVANT BACKGROUND 24 Plaintiff initiated this action with the filing of his complaint on July 8, 2022. (Doc. 1.) 25 Following screening and service of process, the action proceeded on Plaintiff’s First 26 Amendment retaliation claim against Defendant D. Gutierrez and Fourteenth Amendment due 27 process claim against Defendant J. McNutt. (See Docs. 9 & 10.) 1 On July 26, 2023, Defendant McNutt filed a motion to dismiss for lack of subject matter 2 jurisdiction. (See Doc. 16.) Pursuant to Local Rule 230(l), Plaintiff’s opposition or statement of 3 non-opposition to the motion was to be filed “not more than twenty-one (21) days after the date of 4 service of the motion.” Although more than 21 days have passed, Plaintiff has not filed an 5 opposition or a statement of non-opposition to Defendant’s motion. 6 On July 31, 2023, the Court granted Defendant Gutierrez’s motion to stay the responsive 7 pleading deadline as to Gutierrez or jointly as to Gutierrez and McNutt pending the outcome of 8 Defendant McNutt’s motion to dismiss. (Doc. 18.) 9 On August 23, 2023, this Court issued its “Order to Show Cause (“OSC”) in Writing Why 10 Action Should Not be Dismissed for Failure to Obey Court Orders.” (Doc. 20.) Plaintiff was 11 ordered to respond within 21 days, to show cause why the action should not be dismissed, or, 12 alternatively, to file his opposition or statement of non-opposition to the pending motion to 13 dismiss. (Id. at 2.) More than 21 days elapsed, and Plaintiff failed to respond to the OSC. 14 On September 20, 2023, the Court issued Findings and Recommendations to dismiss this 15 action for Plaintiff’s failure to obey court orders and failure to prosecute. (Doc. 23.) Plaintiff was 16 ordered to file any objections within 14 days. (Id. at 4-5.) On October 16, 2023,1 Plaintiff filed 17 his objections. (Doc. 25.) 18 II. DISCUSSION 19 In his objections, Plaintiff apologizes for failing to comply with the Court’s OSC and 20 states he is “new to all these rules and court procedural” and is “lost and confuse[d].” (Doc. 25 at 21 1.) Plaintiff contends he has sought legal advice from other prisoners “which lead to failure to 22 obey court order.” (Id.) He states he “need helps, or a little more time to find someone to help” 23 him with “this court’s order, and all them rules and court procedural.” (Id.) Plaintiff asserts 24 Defendant McNutt’s motion to dismiss should be denied because his due process rights have been 25 denied and McNutt’s “corporal punishment against the Plaintiff” violated the “8th Amendment.” 26 (Id. at 1-2.) Plaintiff contends he “served and suffered the full affect” of the constitutional 27 violation and “the defendant should not pro se punish.” (Id. at 2.) He asserts the law is based on 1 “commonsense and fairness” and no one is above the law. (Id.) Plaintiff contends his ”mail is 2 being reround from prison to prison” before it is delivered to him. (Id.) He has been transferred 3 recently from Kern Valley State Prison to Centinela State Prison and his legal mail, including the 4 Court’s findings, was not delivered until October 6, 2023. (Id.) Plaintiff contends he is doing 5 everything he can “to get this document out as soon” as he can, and that he was told he had “to 6 make copy for the Attorney General but [his] access to the law library is limited.” (Id.) 7 A. The Findings and Recommendations Will Be Vacated 8 In this Court’s Findings and Recommendations issued September 20, 2023, Plaintiff was 9 ordered to file any objections within 14 days of the date of service. (Doc. 23.) On October 11, 10 2023, Plaintiff served his objections to the Court’s findings. (Doc. 25.) Although Plaintiff’s 11 objections are untimely by almost two weeks, the Court will vacate its Findings and 12 Recommendations to dismiss this action because Plaintiff contends he did not receive his legal 13 mail until October 6, 2023, and was unable to respond in a timely fashion. 14 B. Plaintiff’s Must File An Opposition To Defendant McNutt’s Motion to Dismiss Within 30 Days 15 16 Defendant McNutt filed a motion to dismiss on July 26, 2023. (Doc. 16.) That motion has 17 been pending for nearly three months without a response from Plaintiff. Plaintiff will be given 18 one final opportunity to file an opposition to the motion to dismiss. 19 The Court is aware that Plaintiff is proceeding pro se and is unfamiliar with court rules 20 and procedures. It is however Plaintiff’s obligation to follow court rules and procedures, despite 21 his pro se status. Plaintiff was advised in the First Informational Order in Prisoner/Civil Detainee 22 Civil Rights Case, issued July 11, 2022, that he “must comply” with the Federal Rules of Civil 23 Procedure and this Court’s Local Rules. (Doc. 3 at 1.) Plaintiff was warned that a failure to 24 comply would “be grounds for imposition of sanctions which may include dismissal of the case.” 25 (Id.) Plaintiff was also advised that once “an attorney for a defendant appears in a pro se 26 plaintiff’s civil rights action (by filing an answer, a motion to dismiss, a motion for summary 27 judgment, etc.), that attorney’s office will receive notice of all filing through the Court’s 1 defendant; the date of the electronic Notice from ECM/ECF is the date of service.” (Id. at 4, 2 emphasis added.) Plaintiff was also warned that he “must keep the Court and opposing parties 3 informed of [his] correct address” and that if he “moves to a different address without filing and 4 serving a notice of change of address, documents served at [his] old address of record shall be 5 deemed received even if not actually received.” (Id. at 5.) 6 Plaintiff initiated this action by filing his complaint and must timely prosecute his case. It 7 is Plaintiff’s obligation to familiarize himself with the applicable rules and procedures to the best 8 of his ability—an obligation that extends to all pro se plaintiffs. Plaintiff is encouraged to 9 carefully review the Court’s First Informational Order issued and served on July 11, 2022. 10 Next, as noted above, Plaintiff is not required to “make [a] copy for the Attorney General” 11 (Doc. 25 at 2) of any document he serves because the Attorney General’s Office will receive the 12 document through ECM/ECF on the same date it is filed with the Court. 13 The Court notes Plaintiff has failed to file a notice of change of address despite being 14 directed to do so in the First Informational Order.2 Instead, Plaintiff’s objections reference a 15 transfer from Kern Valley State Prison, the address on currently on file with the Court, to 16 Centinela State Prison. (Doc. 25 at 2.) That reference is insufficient to provide the Court and the 17 opposing parties with notice of Plaintiff’s change of address. As a one-time courtesy, the Court 18 will direct the Clerk of the Court to change Plaintiff’s address to reflect the fact he is now housed 19 at Centinela State Prison. However, Plaintiff is warned that if he is transferred from Centinela 20 State Prison to another facility and fails to file a notice of change of address, as advised in the 21 First Informational Order, any documents served to Plaintiff’s old address will be deemed 22 received even if not actually received. It is Plaintiff’s obligation to keep the Court apprised of his 23 current address. See Local Rule 182(f). 24 C. Request for the Appointment of Counsel 25 In his objections to the Court’s findings, Plaintiff states he needs “legal counsel” to help 26 him. (See Doc. 25 at 1.) 27
2 The First Informational Order also provided a blank Notice of Change of Address form for Plaintiff’s 1 1. Applicable Legal Standards 2 Plaintiffs do not have a constitutional right to appointed counsel in § 1983 actions. Rand v. 3 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 952, 954 4 n.1 (9th Cir. 1998). Nor can the Court require an attorney to represent a party under 28 U.S.C. § 5 1915(e)(1). See Mallard v. U.S. Dist. Court, 490 U.S. 296, 304-05 (1989). However, in 6 “exceptional circumstances,” the Court may request the voluntary assistance of counsel pursuant 7 to section 1915(e)(1). Rand, 113 F.3d at 1525. 8 Given that the Court has no reasonable method of securing and compensating counsel, the 9 Court will seek volunteer counsel only in extraordinary cases. In determining whether 10 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 11 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 12 complexity of the legal issues involved.” Rand, 113 F.3d at 1525 (internal quotation marks & 13 citations omitted). Neither factor is dispositive, and both factors must be considered before a 14 court decides. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1998). 15 2. Analysis 16 The Court must evaluate the likelihood of Plaintiff’s success on the merits of his claims. 17 Rand, 113 F.3d at 1525. While Plaintiff’s complaint was screened as required by 28 U.S.C. § 18 1915A(a) (see Doc. 9), Defendant McNutt has filed a motion to dismiss the complaint for a lack 19 of subject matter jurisdiction (see Doc. 16) and briefing is ongoing. Therefore, it is premature to 20 determine that there is a likelihood of success on the merits. See, e.g., Brookins v. Hernandez, No. 21 1:17-cv-01675-AWI-SAB, 2020 WL 8613838, at *1 (E.D. Cal. June 11, 2020) (premature to 22 determine likelihood of success on the merits where defendants have filed a motion for summary 23 judgment); Garcia v. Smith, No. 10CV1187 AJB RBB, 2012 WL 2499003, at *3 (S.D. Cal. June 24 27, 2012) (denying appointment of counsel where prisoner's complaint survived defendants’ 25 motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), but it was “too early to determine” 26 whether his adequately pleaded claims were likely to succeed on the merits, or even survive 27 summary judgment). A likelihood of success on the merits determination is not the same as that 1 sufficiently and plausibly alleged a cause of action or claim entitling the plaintiff to relief. The 2 merits of the allegations are not tested, for the Court is to consider factual allegations to be true 3 for purposes of screening. 4 The Court finds this case does not present exceptional circumstances that would warrant 5 the appointment of counsel. Considering the legal issues involved, the Court finds Plaintiff able to 6 articulate his claims in light of their complexity. Rand, 113 F.3d at 1525. In its First Screening 7 Order, the Court determined Plaintiff had plausibly alleged a First Amendment retaliation claim 8 against Defendant Gutierrez and a due process violation against Defendant McNutt. (Doc. 9 at 5- 9 8.) Neither claim is complex. Bonin v. Vasquez, 999 F.2d 425, 428–29 (9th Cir. 1993) (while 10 Plaintiff may have limited knowledge of the law, the Court does not find the issues in this case 11 “so complex that due process violations will occur absent the presence of counsel”); Randolph v. 12 Hall, No. 1:20-cv-01434-JLT-SKO (PC), 2023 WL 6626437, at *2 (E.D. Cal. Oct. 11, 2023) 13 (“The Court finds those retaliation claims are not complex”); Bowell v. Montoya, No. 1:17-cv- 14 00605-LJO-GSA-PC, 2018 WL 4772030, at *1 (E.D. Cal. Oct. 1, 2018) (“Plaintiff's claims - - for 15 retaliation, due process, and failure to protect Plaintiff - - are not complex”). Thus, the Court finds 16 Plaintiff can articulate his claims in light of their complexity. 17 Plaintiff is advised the fact an attorney may be better able to perform research, investigate, 18 and represent Plaintiff during discovery and at trial does not amount to an exceptional 19 circumstance. Rand, 113 F.3d at 1525 (finding no abuse of discretion under 28 U.S.C. § 1915(e) 20 when district court denied appointment of counsel despite fact that pro se prisoner “may well 21 have fared better-particularly in the realm of discovery and the securing of expert testimony”); 22 Wilborn, 789 F.2d at 1331; Courtney v. Kandel, No. 2:18-CV-2052-KJM-DMC-P, 2020 WL 23 1432991, at *1 (E.D. Cal. Mar. 24, 2020) (challenges conducting discovery and preparing for trial 24 “are ordinary for prisoners pursuing civil rights claim” and cannot form the basis for appointment 25 of counsel); Thornton v. Schwarzenegger, No. 10CV01583 BTM RBB, 2011 WL 90320, at *7 26 (S.D. Cal. Jan. 11, 2011) (explaining that “[f]actual disputes and anticipated cross-examination of 27 witnesses do not indicate the presence of complex legal issues warranting a finding of exceptional 1 Plaintiff is also advised that an inability to afford to hire counsel is not an exceptional 2 circumstance warranting the appointment of counsel. See Callender v. Ramm, No. 2:16-cv-0694 3 JAM AC P, 2018 WL 6448536, at *3 (E.D. Cal. Dec. 10, 2018) (“The law is clear: neither 4 plaintiff’s indigence, nor his lack of education, nor his lack of legal expertise warrant the 5 appointment of counsel”); see also Howard v. Hedgpeth, No. 08cv0859 RTB (PCL), 2010 WL 6 1641087, at *2 (E.D. Cal. Apr. 20, 2010) (an inability to find counsel is not a proper factor for the 7 Court to consider). Nor is limited access to the law library an exceptional circumstance because 8 limited law library access is a circumstance common to most prisoners. Escamilla v. Oboyle, No. 9 2:22-cv-2038 KJM AC P, 2023 WL 2918028, at *1 (E.D. Cal. Apr. 12, 2023) (“Circumstances 10 common to most prisoners, such as a lack of legal education and limited law library access, do not 11 establish exceptional circumstances that would warrant a request for voluntary assistance of 12 counsel”); Vasquez v. Moghaddam, No. 2:19-cv-01283 AC P, 2022 WL 2133925, at *1 (E.D. 13 Cal. June 14, 2022) (“despite his currently reduced access to the prison law library, the instant 14 motion demonstrates plaintiff’s ability to locate and cite to statutes, medical manuals and case 15 law”). 16 Finally, while the Court recognizes that Plaintiff is at a disadvantage due to his pro se 17 status and his incarceration, the test is not whether Plaintiff would benefit from the appointment 18 of counsel. See Wilborn, 789 F.2d at 1331. The test is whether exceptional circumstances exist, 19 and here, they do not. There is little doubt most pro se litigants “find it difficult to articulate 20 [their] claims,” and would be better served with the assistance of counsel. Id. For this reason, in 21 the absence of counsel, federal courts employ procedures which are highly protective of a pro se 22 litigant's rights. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding pro se complaint to less 23 stringent standard) (per curiam). In fact, where a plaintiff appears pro se in a civil rights case, the 24 court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. 25 Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal 26 construction is “particularly important in civil rights cases.” Ferdik v. Bonzelet, 963 F.2d 1258, 27 1261 (9th Cir. 1992). Thus, where a pro se litigant can “articulate his claims” in light of the 1 appointment of counsel do not exist. Wilborn, 789 F.2d at 1331; accord Palmer v. Valdez, 560 2 F.3d 965, 970 (9th Cir. 2009). 3 In sum, the Court finds no exceptional circumstances warranting the appointment of 4 counsel. Rand, 113 F.3d at 1525. 5 III. CONCLUSION AND ORDERS 6 For the reasons stated above, IT IS HEREBY ORDERED that: 7 1. The Findings and Recommendations (Doc. 23) issued September 20, 2023, are 8 VACATED; 9 2. Plaintiff SHALL file an opposition to Defendant McNutt’s motion to dismiss within 10 30 days of the date of service of this order. No further extensions of this deadline will 11 be entertained; 12 3. The Clerk of the Court is DIRECTED to change Plaintiff’s address from Kern Valley 13 State Prison to Centinela State Prison as a one-time courtesy; and 14 4. Plaintiff’s request for the appointment of counsel is DENIED. 15 If Plaintiff fails to comply with this order, the Court will recommend that this action 16 be dismissed, without prejudice, for failure to obey a court order and for failure to 17 prosecute. 18 IT IS SO ORDERED. 19
20 Dated: October 18, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 21
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