(PC) Matlock v. Kern County ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD A. MATLOCK, No. 1:19-cv-1368-NONE-JLT (PC) 12 Plaintiff, ORDER REQUIRING RESPONSE AND DENYING APPOINTMENT OF COUNSEL 13 v. (Doc. No. 25) 14 KERN COUNTY, et al., 14-DAY DEADLINE 15 Defendants. 16 17 On October 1, 2020, the Court issued a screening order finding that Plaintiff’s first 18 amended complaint states a cognizable Fourteenth Amendment failure to protect claim against 19 John Does #1, #2, and #3, and finding no other cognizable claims as pleaded. (Doc. 18 at 8.) 20 “The screening order explained that plaintiff now had three options: (1) he could notify the court 21 that he wished to forego amendment and proceed only on the claims found to be cognizable by 22 the screening order; (2) he could file a second amended complaint in an attempt to cure the noted 23 defects in the claims not found to be cognizable by the screening order; or (3) he could “stand on 24 the first amended complaint as pleaded” in which case the magistrate judge would issue findings 25 and recommendations recommending dismissal of the claims found not cognizable in the 26 screening order and the question as to which, if any, of any of the claims he had asserted were 27 cognizable would be decided by the undersigned.” (Doc. 24 at 1–2.) 28 /// 1 After Plaintiff failed to respond to the screening order despite several extensions of time, 2 the Court entered findings and recommendations recommending the dismissal of the action 3 without prejudice for failure to comply with a court order and failure to prosecute. (Doc. 23.) 4 Thereafter, upon de novo review of the case, the Court found the findings and 5 recommendations to be supported by the record and proper analysis. (Doc. 24 at 2.) However, 6 “given the seriousness of the allegations,” the court granted Plaintiff another opportunity to make 7 an election on how he wishes to proceed with his claims. (Id.) 8 On May 24, 2021, Plaintiff file his response to the screening order indicating that he 9 “would like to pursue with either option 1 or 3.” (Doc. 25.) Therefore, Plaintiff does not wish to 10 amend his complaint, but he must still make an election of one of the two remaining options: (1) 11 Plaintiff notify the court that he wished to forego amendment and proceed only on the claims 12 found to be cognizable by the screening order, in which case the Court will then recommend that 13 his remaining claims be dismissed, and he will be granted a short period in which he must 14 identify the Doe defendants; OR (3) he could “stand on the first amended complaint as pleaded” 15 in which case the magistrate judge would issue findings and recommendations recommending 16 dismissal of the claims found not cognizable in the screening order and the question as to which, 17 if any, of any of the claims he had asserted were cognizable would be decided by a District Judge. 18 Plaintiff shall notify the Court, in writing, within 14 days, which option he chooses. 19 Plaintiff is again advised that the Court cannot order service of a Doe defendant because the 20 United States Marshal cannot serve an unknown individual. Therefore, before the Court orders 21 the United States Marshal to serve a Doe defendant, plaintiff will be required to identify him or 22 her with enough information to locate the defendant for service of process. Plaintiff will be given 23 an opportunity through discovery to identify the unknown Doe defendants. Crowley v. Bannister, 24 734 F.3d 967, 978 (9th Cir. 2013) (quoting Gillespie v. Civiletti, 629 E.2d 637, 642 (9th Cir. 25 1980)). Once the identity of a Doe defendant is ascertained, Plaintiff must file a motion to amend 26 his complaint only to identify the identified Doe defendant so that service by the United States 27 Marshal can be attempted. Therefore, the Court will send Plaintiff the appropriate service 28 documents at such time that plaintiff ascertains the identities of the Doe defendants. However, if 1 plaintiff fails to identify any Doe defendant during the course of the discovery, any Doe 2 Defendant will be dismissed from this action. 3 Plaintiff requests the appointment of counsel to represent him in this case. (Doc. 25.) 4 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 5 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an attorney to represent 6 Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490 7 U.S. 296, 298 (1989). The Court may request the voluntary assistance of counsel under section 8 1915(e)(1). Rand, 113 F.3d at 1525. However, without a reasonable method of securing and 9 compensating counsel, the Court will seek volunteer counsel only in the most serious and 10 exceptional cases. In determining whether exceptional circumstances exist, the district court must 11 evaluate both the likelihood of success of the merits and the ability of the plaintiff to articulate his 12 claims pro se in light of the complexity of the legal issues involved. Id. 13 In the present case, the Court does not find the required exceptional circumstances. Even 14 assuming that Plaintiff is not well-versed in the law and that he has made serious allegations 15 about his throat being cut, which, if proved, would entitle him to relief, his case is not 16 exceptional. This Court is regularly faced with cases involving inmate-on-inmate violence and 17 failure to protect claims. At this early stage in the proceedings, the Court cannot determine that 18 Plaintiff is likely to succeed on the merits. Moreover, based on a review of the record, the Court 19 finds that Plaintiff can articulate his claims adequately. Accordingly, it is ORDERED that: 20 1. The Court DENIES WITHOUT PREJUDICE Plaintiff’s motion for the 21 appointment of counsel. (Doc. 25.) 22 2. Plaintiff shall notify the court, within 14 days, whether he wishes to proceed only 23 on the claims found to be cognizable by the screening order, OR that he wishes to stand on the 24 first amended complaint as pleaded. 25 /// 26 /// 27 /// 28 /// 1 Failure to respond to this order may result in a recommendation of dismissal of the 2 action for failure to obey a court order. 3 IT IS SO ORDERED. 4 5 Dated: June 17, 2021 _ /s/ Jennifer L. Thurston CHIEF UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28