(PC) Hudson v. Cargill ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TORIANO GERMAINE HUDSON, Sr., No. 2:20-cv-0481 KJN P 12 Plaintiff, 13 v. ORDER 14 ROBERT NEUSCHMID, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel. Plaintiff’s second motion for 18 extension of time is before the court. 19 Background 20 This action was opened on February 19, 2020. Plaintiff filed an amended complaint, 21 which was dismissed on September 20, 2020. The court provided plaintiff with detailed 22 standards concerning how to plead a medical claim, granted him sixty days to file a second 23 amended complaint, and sent him the court’s form complaint. On November 23, 2020, plaintiff 24 was granted an additional ninety days in which to amend. On February 11, 2021, plaintiff filed a 25 motion for another sixty days due to the coronavirus and the indefinite closure of the prison law 26 library. (ECF No. 29 at 1.) Plaintiff adds that if the court would like to appoint counsel to 27 eliminate all future requests for extensions of time, plaintiff would be in agreement. (Id.) 28 //// 1 Discussion 2 Plaintiff fails to explain why he has been unable to prepare an amended complaint, using 3 the court’s form, despite having access to paging services when physical access to the law library 4 is unavailable. Plaintiff has had benefit of two screening orders that provided plaintiff with the 5 court’s screening standards as well as pinpoint standards for potential claims raised in his original 6 and amended complaints. (ECF Nos. 8, 24.) While plaintiff remarks that the law library is 7 closed, he fails to set forth any efforts he has taken otherwise, for example, using the prison’s 8 paging system, in an effort to draft his second amended complaint. Both courts and litigants are 9 finding ways to adapt to the COVID-19 pandemic. 10 Importantly, Rule 8(a) of the Federal Rules of Civil Procedure articulates that the 11 complaint must contain: 12 (1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim 13 needs no new jurisdictional support; 14 (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and 15 (3) a demand for the relief sought, which may include relief in the 16 alternative or different types of relief. 17 Fed. R. Civ. P. 8(a). Indeed, the federal rules provide an official Appendix of Forms “intended to 18 indicate the simplicity and brevity of statement which the rules contemplate.” McHenry v. 19 Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (citing Fed. R. Civ. P. 84.)1 The court (and defendant) 20 should be able to read and understand plaintiff’s pleading within minutes. McHenry, 84 F.3d at 21 1177. This court’s civil rights form incorporates this simplicity and brevity, providing boxes for 22 prisoners to mark the appropriate cause of action. Use of this form enables plaintiff to handwrite 23 24 1 Indeed, the standard negligence complaint contains only three short paragraphs: “1. Allegation of jurisdiction. [¶] 2. On June 1, 1936, in a public highway called Boylston Street in Boston, 25 Massachusetts, defendant negligently drove a motor vehicle against plaintiff, who was then crossing said highway. [¶] 3. As a result plaintiff was thrown down and had his leg broken, and 26 was otherwise injured, was prevented from transacting his business, suffered great pain of body 27 and mind, and incurred expenses for medical attention and hospitalization in the sum of one thousand dollars. [¶] Wherefore plaintiff demands judgment against defendant in the sum of 28 _____ dollars and costs.” McHenry, 84 F.3d at 1177, citing Fed. R. Civ. P. Form 9. 1 a copy of his proposed amended complaint should he be unable to obtain access to photocopy 2 services to retain a copy of his original pleading for his own records. Plaintiff is not required to 3 provide evidence or exhibits or cite legal authorities in his second amended complaint; rather, he 4 must simply state the facts upon which his claims are based. 5 Plaintiff has had over five months to draft his second amended complaint. This court 6 cannot continue granting unlimited extensions of time. In an abundance of caution, plaintiff is 7 granted one final extension of time to file a second amended complaint. Plaintiff must use the 8 court’s civil rights complaint form. 9 No further extensions of time will be granted. If plaintiff does not file a timely second 10 amended complaint, the undersigned will recommend that this action be dismissed based on 11 plaintiff’s failure to comply with a court order. Local Rule 110; Fed. R. Civ. P. 41(b). 12 Request for Counsel 13 In the alternative, plaintiff requests that the court appoint counsel. District courts lack 14 authority to require counsel to represent indigent prisoners in section 1983 cases. Mallard v. 15 United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may 16 request an attorney to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell 17 v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 18 (9th Cir. 1990). When determining whether “exceptional circumstances” exist, the court must 19 consider plaintiff’s likelihood of success on the merits as well as the ability of the plaintiff to 20 articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v. 21 Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to 22 appoint counsel). The burden of demonstrating exceptional circumstances is on the plaintiff. Id. 23 Circumstances common to most prisoners, such as lack of legal education and limited law library 24 access, do not establish exceptional circumstances that warrant a request for voluntary assistance 25 of counsel. 26 Plaintiff does not appear to have difficulty expressing himself. Because plaintiff does not 27 have an operative complaint on file, the court cannot determine plaintiff’s likely success on the 28 merits. Having considered the factors under Palmer, plaintiff has failed to meet his burden of 1 | demonstrating exceptional circumstances warranting the appointment of counsel at this time. 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. Plaintiffs motion for the appointment of counsel (ECF No. 29) is denied without 4 | prejudice; 5 2. Plaintiffs motion for an extension of time (ECF No. 29) is granted; 6 3. Plaintiff is granted thirty days from the date of this order in which to file a second 7 | amended complaint; and 8 4. The Clerk of the Court shall send plaintiff two forms for filing a civil rights complaint 9 | by a prisoner. 10 | Dated: February 19, 2021 Fensbl A Abar 12 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 13 14 ‘uds0481.31+36 15 16 17 18 19 20 21 22 23 24 25 26 27 28