(PC) Morgan v. Sacramento County Sheriffs Dept. ( 2019 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SAMMY DAVIS MORGAN, No. 2:19-CV-1179-KJM-DMC-P 12 Plaintiff, 13 v. ORDER 14 SACRAMENTO COUNTY SHERIFF’S DEPT., et al., 15 Defendants. 16 17 18 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 19 42 U.S.C. § 1983. Pending before the court are the following motions: (1) plaintiff’s motions for 20 discovery (ECF Nos. 9, 13, and 17); (2) plaintiff’s motion for an extension of time (ECF No. 18); 21 (3) plaintiff’s motion for the appointment of counsel (ECF No. 20); (4) plaintiff’s motion for 22 issuance of a summons (ECF No. 21); and (5) plaintiff’s motion for leave to amend (ECF No. 23 23).1 24 / / / 25 / / / 26 / / / 27 1 Also before the court but addressed separately is plaintiff’s “Motion to Prohibit 28 Restrictions on Right to Counsel” (ECF No. 22). 1 I. PROCEDURAL BACKGROUND 2 This action currently proceeds on plaintiff’s original complaint, filed on June 26, 3 2019. See ECF No. 1. On July 1, 2019, the court issued a screening order identifying the 4 following claims: an Eighth Amendment claim related to plaintiff’s housing, an Eighth 5 Amendment excessive force claim, and a due process claim related to a disciplinary hearing. See 6 ECF No. 5, pg. 2. The court determined plaintiff’s complaint stated a cognizable Eighth 7 Amendment excessive force against defendant Morgan but otherwise failed to state any other 8 claim against any defendants. See id. at 3-6. Plaintiff was permitted leave to file a second 9 amended complaint and informed that the action would proceed on the original complaint against 10 defendant Morgan if he failed to do so within the time provided. See id. at 6-8. 11 On July 15, 2019, plaintiff timely filed a first amended complaint. See ECF No. 7. 12 Plaintiff then filed another pleading entitled “First Amended Complaint” on August 19, 2018. 13 See ECF No. 11. On September 9, 2019, plaintiff filed a pleading entitled “Second Amended 14 Complaint.” See ECF No. 15. On September 9, 2019, plaintiff filed another pleading entitled 15 “First Amended Complaint,” see ECF No. 19, along with the pending motion for an extension of 16 time, in which plaintiff seeks additional time to amend his claims, see ECF No. 18, and motion 17 for leave to amend, see ECF No. 23. 18 19 II. DISCUSSION 20 A. Leave to Amend 21 Given the filings outlined above, the following three amended pleadings are before 22 the court, all having been filed since the court issued the July 1, 2019, screening order: 23 Amended Pleading 1 – “First Amended Complaint” filed July 15, 2019. 24 Amended Pleading 2 – “Second Amended Complaint” filed August 19, 2019. 25 Amended Pleading 3 – “First Amended Complaint” filed September 9, 2019. 26 Amended Pleading 1 was apparently filed in response to the court’s screening order and 27 supersedes the original complaint. Amended Pleading 2 was filed as-of-right under Federal Rule 28 of Civil Procedure 15 and supersedes Amended Pleading 1. Good cause appearing therefor, 1 plaintiff’s motion for further leave to amend, filed with Amended Pleading 3 on September 9, 2 2019, will be granted. This action will proceed on Amended Pleading 3, which the Clerk of the 3 Court will be directed to docket as plaintiff’s second amended complaint. 4 Plaintiff’s motion for an extension of time to amend will be denied as unnecessary 5 because there is no indication plaintiff delayed in seeking responding to the court’s screening 6 order or seeking leave to amend. 7 The sufficiency of plaintiff’s second amended complaint will be addressed by 8 separate order. 9 B. Appointment of Counsel 10 Pending before the court is plaintiff’s motion for the appointment of counsel. The 11 United States Supreme Court has ruled that district courts lack authority to require counsel to 12 represent indigent prisoners in § 1983 cases. See Mallard v. United States Dist. Court, 490 U.S. 13 296, 298 (1989). In certain exceptional circumstances, the court may request the voluntary 14 assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 F.2d 1015, 15 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). A finding 16 of “exceptional circumstances” requires an evaluation of both the likelihood of success on the 17 merits and the ability of the plaintiff to articulate his claims on his own in light of the complexity 18 of the legal issues involved. See Terrell, 935 F.2d at 1017. Neither factor is dispositive and both 19 must be viewed together before reaching a decision. See id. In Terrell, the Ninth Circuit 20 concluded the district court did not abuse its discretion with respect to appointment of counsel 21 because: 22 . . . Terrell demonstrated sufficient writing ability and legal knowledge to articulate his claim. The facts he alleged and the issues he raised were not 23 of substantial complexity. The compelling evidence against Terrell made it extremely unlikely that he would succeed on the merits. 24 Id. at 1017. 25 26 / / / 27 / / / 28 / / / 1 In the present case, the court does not at this time find the required exceptional 2 circumstances. At the outset, the court notes that plaintiff’s motion does not outline any reasons 3 justifying the appointment of counsel. See ECF No. 20. Further, at this stage of the proceedings 4 before any process has issued or defendant has answered, plaintiff is unable to demonstrate any 5 likelihood of success on the merits. Finally, a review of the record demonstrates that plaintiff is 6 capable of articulating his claims, which are neither factually nor legally complex, as 7 demonstrated by the court’s finding plaintiff has stated a cognizable Eighth Amendment 8 excessive force claim and upon which the court is prepared to allow this action to proceed. 9 C. Summons 10 Upon screening of the operative second amended complaint, filed on August 9, 11 2019, the court will direct issuance of a summons if it concludes plaintiff continues to state a 12 cognizable claim. Plaintiff’s currently motion for issuance of a summons will, therefore, be 13 denied as unnecessary. 14 D. Discovery 15 Plaintiff has filed a number of motions related to discovery. Because the case has 16 not yet been put at issue with the filing of an answer to plaintiff’s allegations, discovery is 17 premature. Plaintiff is advised that, upon the filing of an answer, the court will issue a scheduling 18 order outlining the procedures and deadlines related to discovery. In the meantime, plaintiff’s 19 motions will be denied as premature. 20 21 III. CONCLUSION 22 Accordingly, IT IS HERREBY ORDERED that: 23 1. Plaintiff’s motion for leave to amend (ECF No. 23) is granted; 24 2. Plaintiff’s motion for an extension of time (ECF No. 18) is denied as 25 unnecessary; 26 3. This action proceeds on plaintiff’s amended complaint filed on September 27 9, 2019 (ECF No. 19), which the Clerk of the Court is directed to docket as plaintiff’s second 28 amended complaint; 1 4. Plaintiff's motion for the appointment of counsel (ECF No. 20) is denied; 2 5. Plaintiff's motion for issuance of a summons (ECF No. 21) is denied as 3 | unnecessary; and 4 6. Plaintiff's motions related to discovery (ECF Nos. 9, 13, and 17) are denied 5 | as premature. 6 7 | Dated: September 24, 2019 Ssvcqo_ 8 DENNIS M. COTA 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28