(PC) Cyprian v. Constable ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 REALIOUS CYPRIAN, No. 2:19-cv-0689 JAM AC P 12 Plaintiff, 13 v. ORDER 14 T. CONSTABLE, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed this civil 18 rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 Before this court are two motions filed by plaintiff: one that simultaneously asks for an 21 enlargement of time and for the consolidation of all parties served (ECF No. 37), and one that 22 moves for a renewal of plaintiff’s request for amicus curiae (ECF No. 46). For the reasons stated 23 below, both motions will be denied. 24 I. ENLARGEMENT OF TIME AND CONSOLIDATION MOTION 25 There are three defendants in this action: Correctional Officer T. Constable, Lieutenant S. 26 Amador, and Correctional Officer J.W. Thomas. At the time the instant motion was filed in 27 February 2021, only defendants Constable and Amador had been properly identified and had filed 28 an answer to the complaint. See ECF No. 32. They had done so in November 2020. See id. 1 Thereafter, defendant Thomas was accurately identified and served, and in April 2021, she filed 2 an answer as well. See ECF No. 41. 3 Plaintiff’s motion asks, in part, for a thirty-day extension of time to respond to the answer 4 filed by defendants Constable and Amador. See ECF No. 37 at 1. It also asks for the extension 5 so that plaintiff can “consolidate all the parties” in this case. See id. at 1-2. Additional reasons 6 for the request are difficult to understand. See id. at 2. In the motion, however, plaintiff further 7 states that he has not received discovery, and he requests “ADR or realistic mediation.” See id. at 8 2. 9 Because all three defendants have now been properly identified and served, they are all 10 part of this action. Accordingly, there is no need to “consolidate all the parties.” Moreover, 11 because defendants have all now filed answers, the case has been referred to the court’s 12 Alternative Dispute Resolution (“ADR”) Project and all other proceedings have been stayed for 13 120 days. See ECF No. 43. Pursuant to the April 2021 stay order, the parties are to meet and 14 confer during this period to determine whether this action can be settled, and if so, participate in a 15 settlement conference. Therefore there is no need for plaintiff to respond to defendants’ 16 answers,1 and his request for discovery documents is premature. For these reasons, this motion 17 will be denied. 18 II. AMICUS CURIAE MOTION 19 On May 5, 2021, plaintiff filed a “motion of renew [sic] of plaintiff request for ‘amicus 20 curae’ [sic].” ECF No. 46 (brackets added). Ultimately, the motion asks that Jeffrey D. 21 McDonald, an inmate who has assisted plaintiff with this matter, assist him during ADR 22 proceedings. See id. at 1-3. In support of the motion, plaintiff states that he is unable to read and 23 that he is a mental health patient who has an enhanced level of care. As a result, he contends, this 24 case is “a complex issue” for him. See id. at 2. In the alternative, plaintiff asks for the 25 appointment of counsel. See id. at 2. Attached to the motion is a declaration from Mr. McDonald 26 27 1 In any event, the Rules of Civil Procedure do not provide for a response to the answer unless ordered by the court. Rule 7(a)(7), Fed. R. Civ. P. Replies to answers generally serve no 28 purpose. It is not this court’s practice to require or permit replies to answers. 1 which states his willingness to assist plaintiff during the ADR proceedings. See id. at 4-6. 2 The role of an amicus curiae is to assist in a case of general public interest, to supplement 3 the efforts of counsel in the case, and to draw the court’s attention to law that has escaped 4 consideration. See Miller-Wohl Co., Inc. v. Comm’r of Labor and Indus., 694 F.2d 203, 204 (9th 5 Cir. 1982). Historically, he is “an impartial individual who suggests the interpretation and status 6 of the law, gives information concerning it, and whose function is to advise in order that justice 7 may be done rather than to advocate a point of view so that a cause may be won by one party or 8 another.” Leigh v. Engle, 535 F. Supp. 418, 420 (N.D. 1ll. Jan. 22, 1982). A district court has 9 broad discretion to permit individuals to participate in a case as amicus curiae. See Hoptowit v. 10 Ray, 682 F.2d 1237, 1260 (9th Cir. 1982), abrogated on other grounds by Sandin v. Conner, 515 11 U.S. 472 (1995). 12 Although plaintiff has filed an amicus curiae motion, Mr. McDonald’s declaration speaks 13 of meeting and conferring with defense counsel, of negotiating on plaintiff’s behalf, and of 14 advising plaintiff. See ECF No. 46 at 5-6. In sum, ultimately, plaintiff is requesting 15 representation by Mr. McDonald during these proceedings. 16 In certain exceptional circumstances, the court may request the voluntary assistance of 17 counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 18 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). To date, however, 19 plaintiff has been able to file a cogent complaint and “amendments” to it, as well as multiple 20 motions to move this case forward. See, e.g., ECF Nos. 1, 5, 7-15, 31. Therefore, despite 21 plaintiff’s alleged inability to read and his enhanced level of care as a mental health patient, in the 22 present case, the court does not find the required exceptional circumstances that would warrant 23 either appointment of counsel or Mr. McDonald’s assistance at in ADR proceedings. 24 Furthermore, even if the court were inclined to grant Mr. McDonald amicus status in this 25 case, Mr. McDonald would have no standing to raise arguments or to request discovery on 26 plaintiff’s behalf. See United States v. City of Los Angeles, 288 F.3d 391, 400 (9th Cir. 2002). 27 For these reasons, plaintiff’s amicus curiae motion will be denied. 28 //// ] Accordingly, IT IS HEREBY ORDERED that: 2 1. Plaintiffs motion for a thirty-day extension of time and motion to consolidate all 3 || parties (ECF No. 37) is DENIED, and 4 2. Plaintiff's motion to renew his amicus curiae request (ECF No. 46) is DENIED. 5 || DATED: May 25, 2021 . ~ 6 Ctlhter— Lane 7 ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28