(PC) Khouanmany v. Alencastre ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 VILAYCHITH KHOUANMANY, No. 2:17-cv-1326-TLN-EFB P 12 Plaintiff, 13 v. ORDER 14 UNITED STATES MARSHALS, et al., 15 Defendants. 16 17 Plaintiff is a federal prisoner proceeding pro se with an action arising under Bivens v. Six 18 Unknown Named Agents, 403 U.S. 388 (1971). She currently proceeds with an Eighth 19 Amendment claim for alleged sexual assault against defendant Alencastre. See ECF Nos. 73, 77, 20 & 92. On September 3, 2019, plaintiff filed a motion to amend which sought primarily to 21 reinstitute claims that the court had already screened out. ECF No. 101. The court recommended 22 that motion be denied based on: (1) the length of time this case has already been pending; (2) 23 plaintiff’s lengthy and troubled history of filing numerous motions to amend; and (3) the 24 scattershot nature of plaintiff’s proposed amended complaint. ECF No. 106. Those 25 recommendations were adopted in full by the district judge. ECF No. 113. 26 After the foregoing recommendations were filed, plaintiff submitted numerous additional 27 motions – three more motions to amend (ECF Nos. 107, 114, 120), three motions to compel (ECF 28 Nos. 108, 112, 114), two motions to appoint counsel (ECF Nos. 114, 119), and what appears to be 1 responses to defendant Alencastre’s discovery requests (ECF No. 122). As discussed below, 2 plaintiff is granted leave to file an amended complaint as provided herein, and all other motions 3 are denied. 4 Motion to Amend 5 In the October 21, 2019 motion to amend, plaintiff states, inter alia, that she named the 6 wrong individual as the alleged perpetrator of her sexual assault. ECF No. 107 at 2. She requests 7 that defendant Alencastre be replaced with Kevin Deppe. Id. The motion to amend, however, is 8 not a complaint that is complete in itself. Indeed, plaintiff refers to it as both a motion to amend 9 and a “motion to supplement defendant(s).” ECF No. 107 at 1. The local rules require that every 10 amended pleading be complete in itself. See Local Rule 220. Thus, in granting her motion to 11 amend, plaintiff is directed to file her amended complaint which substitutes Kevin Deppe within 12 thirty days from the date of service of this order. Once the new complaint is submitted, the court 13 will screen it and, if appropriate, recommend that defendant Alencastre be dismissed from this 14 suit.1 Plaintiff’s subsequently-filed motions to amend, ECF Nos. 114 and 120, are denied as 15 duplicative and thus, moot. Plaintiff is cautioned that the filing of duplicative motions serves 16 only to slow the progress of this case. In the future, plaintiff shall await a response from the court 17 before filing redundant requests. 18 As defendants requested in response to the motion to amend, the court re-affirms that the 19 only active claim is an Eighth Amendment claim for sexual assaults alleged to have occurred on 20 February 26, 2016, March 1, 2016, and March 11, 2016. ECF No. 110 at 2. Thus, plaintiff is 21 cautioned that leave to amend is granted only as to that claim to permit plaintiff to substitute 22 Kevin Deppe as a defendant. 23 1 However, plaintiff states in one of her motions that she intends to include Alencastre as a 24 co-defendant in an amended complaint because “he was there” and thus, has information that she would like to seek through discovery. ECF No. 114 at 4. That is not a basis for including 25 Alencastre as a defendant. While plaintiff may seek discovery from witnesses with relevant 26 information, simply being “there” is not adequate grounds for a claim. Plaintiff is admonished that unless she alleges actions by Alencastre that violated her federally-protected rights, 27 Alencastre should not be included as a defendant in any amended complaint. If plaintiff files an amended complaint that states a viable claim as to Deppe, plaintiff will have the opportunity to 28 engage in discovery. 1 Motions to Compel 2 Plaintiff’s motions to compel (ECF Nos 108, 112, 114) are denied. The interrogatories at 3 issue were directed at defendant Alencastre whom, as noted supra, plaintiff now indicates she 4 misidentified as the perpetrator of her sexual assault. Thus, it appears that adjudicating these 5 motions to compel would be a waste of judicial economy. Further, as defendant points out, the 6 other requests for discovery assistance contained in the motions are untimely and should have 7 been submitted by September 27, 2019. See ECF No. 96. 8 Motions to Appoint Counsel 9 Plaintiff has also filed redundant requests for appointment of counsel (ECF Nos. 114, 10 119). As has previously been explained (see ECF Nos 31, 42, 49, 60, 64, 67, 79), district courts 11 lack authority to require counsel to represent indigent prisoners in section 1983 cases. Mallard v. 12 United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may 13 request an attorney to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell 14 v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900F.2d 1332, 1335-36 15 (9th Cir. 1990). When determining whether “exceptional circumstances” exist, the court must 16 consider the likelihood of success on the merits as well as the ability of the plaintiff to articulate 17 his claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 18 F.3d 965, 970 (9th Cir. 2009). Having considered those factors once again, the court still finds 19 there are no exceptional circumstances in this case. 20 Discovery Responses 21 Plaintiff has filed her responses to defendant’s discovery with the court. ECF No. 122. 22 As plaintiff is aware (see ECF No. 99), discovery requests/responses shall only be filed with the 23 court if they are at issue. See E.D. Cal. Local Rules 250.2-250.4. At this time, there is no 24 proceeding before the court that requires the court’s review of plaintiff’s discovery responses. 25 ///// 26 ///// 27 ///// 28 ///// 1 Conclusion 2 Based on the foregoing, it is ORDERED that: 3 1. Plaintiffs motion to amend (ECF No. 107) is GRANTED to the extent that, within 4 thirty days from the date of service of this order, plaintiff must submit an amended 5 complaint that is complete in itself and substitutes Kevin Deppe as a defendant to 6 this action; 7 2. Plaintiff’ s subsequently-filed motions to amend (ECF Nos. 114 and 120) are 8 DENIED as duplicative and thus, moot; 9 3. Plaintiff’ s motions to compel (ECF Nos. 108, 112, 114) are DENIED; 10 4. Plaintiff’ motions for the appointment of counsel (ECF Nos. 114, 119) are 11 DENIED, without prejudice; and 12 5. Plaintiff’ s responses to discovery (ECF No. 122) are disregarded. 13 | DATED: January 29, 2020. 14 tid, PDEA 15 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28