(PC) Hicks v. Gosai ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DARYL ANTHONY HICKS, Case No. 2:20-cv-02303-JDP (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO PROCEED ON BOTH HIS SIXTH AND 13 v. EIGHTH AMENDMENT CLAIMS 14 GOSAI, et al., ECF No. 16 15 Defendants. 16 17 18 19 I previously screened plaintiff’s first amended complaint pursuant to 28 U.S.C. § 1915A. 20 I notified plaintiff that he had adequately alleged an Eighth Amendment claim against defendant 21 Gosai, but that his Sixth Amendment claim was not adequately pled. ECF No. 13. I notified him 22 that he could either proceed on his cognizable Eighth Amendment claim or file an amended 23 complaint. Id. Plaintiff subsequently filed a motion to amend the complaint, ECF No. 14, which 24 was granted, ECF No. 15. Rather than file an amended complaint, plaintiff has now filed a 25 document styled as a petition for leave to file an addendum and to amend. ECF No. 16. In that 26 filing he asks that he be allowed to proceed on both his Eighth and Sixth Amendment claims 27 against Gosai. Id. He also requests that the court appoint him an investigator. Id. 28 1 As explained in the June 22, 2021 screening order, the amended complaint’s allegations 2 that Gosai issued plaintiff a false disciplinary citation and denied him legal representation at his 3 disciplinary hearing are insufficient to state a Sixth Amendment claim. ECF No. 13 at 2-3. If 4 plaintiff wishes to pursue a Sixth Amendment claim, he must file a second amended complaint 5 that demonstrates that the false disciplinary citation deprived him of an interest in an “unexpected 6 manner” or resulted in an “atypical and significant hardship . . . in relation to the ordinary 7 incidents of prison life.” See Ramirez v. Galaza, 334 F.3d 850, 860-61 (9th Cir. 2003).1 8 Accordingly, plaintiff’s motion to proceed on his Sixth and Eighth Amendment claims is denied. 9 However, I will grant him additional time to file an amended complaint so that he may attempt to 10 cure the deficiencies identified in the June 22 screening order. Plaintiff is remined that his second 11 amended complaint must be complete on its face without reference to any prior pleading. See 12 E.D. Cal. L.R. 220. He is also warned that should he fail to timely file an amended complaint, I 13 will recommend that his Sixth Amendment claim be dismissed and that this case proceed only on 14 the first amended complaint’s Eighth Amendment claim. 15 I will also deny plaintiff’s motion as to his request for appointment of an investigator. 16 Although plaintiff is proceeding in forma pauperis, 28 U.S.C. § 1915 does not authorize the court 17 to require the government to pay the costs for expert fees or other costs. Hadsell v. Internal 18 Revenue Service, 107 F.3d 750, 752 (9th Cir. 1997); Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir 19 1993); Brown v. Johnson & Johnson, Inc., Case No. 1:17-cv-01285-AWI-EPF, 2018 WL 20 5734531, *2-3 (E.D. Cal. Oct. 31, 2018) (holding that “the Court is without authority to appoint 21 an investigator or researcher to assist Plaintiff.”). 22 Accordingly, it is hereby ORDERED that: 23 1. Plaintiff’s motion, ECF No. 16, is denied. 24 2. Plaintiff is granted thirty days from the date of this order in which to file a second 25 amended complaint. 26 1 Although plaintiff is free to file an amended complaint that asserts a Sixth Amendment 27 claim based on the denial of legal representation, he is reminded that the Sixth Amendment right to counsel does not extend to prison disciplinary decisions. Wolff v. McDonnell, 418 U.S. 539, 28 569-70 (1974). 1 3. Plaintiff is warned that failure to file a second amended complaint within thirty days 2 | will result in a recommendation that his Sixth Amendment claim be dismissed. 3 4. The Clerk of Court is directed to send plaintiff a complaint form. 4 5 IT IS SO ORDERED. Dated: _ November 1, 2021 7 JEREMY D. PETERSON 8 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28