(PC) Keeton v. Lynch ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 TOMMY ROY KEETON, No. 2:20-cv-2270-EFB P 11 Plaintiff, 12 v. ORDER1 13 JEFF LYNCH, et al., 14 Defendants. 15 Plaintiff is a state prisoner proceeding without counsel in an 16 action brought under 42 U.S.C. § 1983. Plaintiff has filed a 17 complaint and several miscellaneous “motions.” See ECF No. 1, 18 5, 7, 9,2 10. 19 20 1 Given plaintiff’s visual impairment, the court has 21 increased the font size of this order. 22 2 ECF No. 9 is plaintiff’s application for leave to proceed in 23 forma pauperis. Because plaintiff has been designated a three- 24 strikes litigant for purposes of 28 U.S.C. § 1915(g), see Keeton v. 25 Marshall, NO. CV 17-1213-FMO (KS), 2018 U.S. Dist. LEXIS 26 156582 (C.D. Cal., Sept. 13, 2018), the court defers ruling on 27 this request. Upon plaintiff’s filing of a legible complaint, the 28 court will review it to determine whether plaintiff was under 1 Complaint 2 Federal courts must engage in a preliminary screening of 3 cases in which prisoners seek redress from a governmental entity 4 or officer or employee of a governmental entity. 28 U.S.C. 5 § 1915A(a). The court must identify cognizable claims or 6 dismiss the complaint, or any portion of the complaint, if the 7 complaint “is frivolous, malicious, or fails to state a claim upon 8 which relief may be granted,” or “seeks monetary relief from a 9 defendant who is immune from such relief.” Id. § 1915A(b). 10 The court cannot discharge its duty under § 1915A because 11 plaintiff’s handwritten 34-page complaint is mostly illegible. See 12 E.D. Cal. Local Rule 130(b) (requiring that complaints be 13 legible). To proceed, plaintiff must file an amended complaint 14 that is legible, i.e., typed or neatly written with adequate spacing 15 between letters, words, and lines. 16 Any amended complaint must not add new, unrelated 17 claims. As best the court can tell, the original complaint 18 concerns lack of library access and the mismanagement of 19 plaintiff’s diabetes. See ECF No. 1. 20 Miscellaneous Motions 21 On November 23, 2020, plaintiff filed a “motion to the 22 courts addressing his being denied of the right to attend within 23 the law library facilities.” ECF No. 5. As best the court can tell, 24 plaintiff is asserting that he was denied access to the law library 25 and requests appointment of counsel. It is not clear from the 26 27 imminent danger of serious physical injury when he commenced 28 this action on November 13, 2020. See 28 U.S.C. § 1915(g). 1 mostly illegible filing what relief plaintiff seeks from the court 2 (apart from appointment of counsel) or why he requires library 3 access. 4 On December 2, 2020, plaintiff filed a “Notice to the 5 Courts” stating that he had misspelled several of the 23 6 defendants’ names in the original complaint. ECF No. 7. He 7 again requested appointment of counsel and stated he had been 8 denied access to the law library. 9 On May 20, 2021, plaintiff again requested “assignment of 10 counsel,” as well as “large print materials” on account of a visual 11 impairment. ECF No. 10. 12 I. Request for Counsel and Request for Large Print 13 Materials 14 District courts lack authority to require counsel to represent 15 indigent prisoners in section 1983 cases. Mallard v. United 16 States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional 17 circumstances, the court may request an attorney to voluntarily 18 to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell 19 v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 20 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When 21 determining whether “exceptional circumstances” exist, the court 22 must consider the likelihood of success on the merits as well as 23 the ability of the plaintiff to articulate his claims pro se in light of 24 the complexity of the legal issues involved. Palmer v. Valdez, 25 560 F.3d 965, 970 (9th Cir. 2009). Having considered those 26 factors, the court finds there are no exceptional circumstances in 27 this case. Plaintiff’s requests for appointment of counsel are 28 therefore denied. 1 As an accommodation to plaintiff regarding his visual 2 impairment, the court will attempt to send its orders in large 3 print, to the extent possible. 4 II. Law Library Access and Notice of Misspellings 5 If plaintiff finds that he cannot comply with a court- 6 imposed deadline because of lack of library access, he may 7 request an extension of time from the court. In any such request, 8 plaintiff should describe the efforts he has made to meet the 9 deadline and state why library access is required for such 10 compliance. He shall also describe the efforts he has made to 11 access the library and state why those efforts were unsuccessful. 12 As a one-time courtesy, the court will direct the Clerk of the 13 Court to send plaintiff a copy of the handwritten portion of his 14 original complaint. Plaintiff may refer to this courtesy copy to 15 prepare an amended complaint in accordance with this order and 16 doing so should not require library access. 17 In drafting an amended complaint, plaintiff may correct any 18 misspelled names of the defendants. 19 Conclusion 20 Accordingly, IT IS ORDERED that: 21 1. The complaint (ECF No. 1) is dismissed with leave to 22 amend within 30 days from the date of service of this 23 order. The complaint must bear the docket number 24 assigned to this case and be titled “Amended 25 Complaint.” Failure to comply with this order will 26 result in dismissal of this action for failure to obey a 27 court order and/or failure to prosecute. 28 ///// 1 2. The Clerk of Court is directed to send plaintiff (a) a 2 courtesy copy of pages 1-34 of ECF No. 1, and (b) the 3 form for use in filing civil rights actions in this district. 4 3. The Clerk of the Court shall terminate ECF Nos. 5, 7, 5 and 10 in accordance with this order. 6 | Dated: September 9, 2021. g EDMUND F. BRENNAN ? UNITED STATES MAGISTRATE JUDGE 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28