(PC) Allen v. Bentacourt ( 2023 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 KEVIN ALLEN, 1:18-cv-01187-JLT-GSA-PC 11 Plaintiff, ORDER DENYING MOTION FOR 90-DAY STAY OF PROCEEDINGS 12 vs. ORDER DENYING MOTION FOR 13 V. BENTACOURT, et al., APPOINTMENT OF COUNSEL 14 (ECF No. 48.) Defendants. 15 ORDER DENYING REQUEST FOR FREE COPIES 16 (ECF No. 49.) 17 18 I. BACKGROUND 19 Kevin Allen (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with 20 this civil rights action pursuant to 42 U.S.C. § 1983. 21 On November 25, 2020, this case was dismissed, with prejudice, for failure to state a 22 claim. (ECF No. 37.) On December 22, 2020, Plaintiff filed an appeal to the Ninth Circuit Court 23 of Appeals. (ECF No. 39.) On March 3, 2023, the Ninth Circuit affirmed in part and reversed 24 in part the district court’s decision to dismiss the case and remanded the case to the district court, 25 where the case was reopened. (ECF No. 43.) 26 This case now proceeds with the First Amended Complaint filed by Plaintiff on July 24, 27 2019, against defendants Correctional Officer (C/O) V. Bentacourt, C/O R. Valdovinos, C/O S. 28 Ochoa, and Lieutenant Sandaval (collectively, “Defendants”), for subjecting Plaintiff to adverse 1 conditions of confinement in violation of the Eighth Amendment. (ECF No. 13.) On March 30, 2 2023, the Court initiated service of process on the Defendants. (ECF No. 46.) 3 On March 31, 2023, Plaintiff filed a motion to appoint counsel for Plaintiff, or in the 4 alternative, to stay the proceedings in this case for 90 days. (ECF No. 48.) On April 14, 2023, 5 Plaintiff filed a notice of change of address and requested a copy of his First Amended Complaint. 6 (ECF No. 49.) 7 II. PLAINTIFF’S MOTIONS 8 A. Motion for Appointment of Counsel 9 Plaintiff requests the Court to appoint pro-bono counsel to assist him with this case. He 10 seeks counsel because “this is an old case and plaintiff will [sic] like to have his day in Court.” 11 (ECF No. 48 at 3:4-6.) Plaintiff believes that Defendant Bentacourt does not work for the CDCR 12 (California Department of Corrections and Rehabilitation) and he needs counsel to find him. 13 Plaintiff names two law firms in San Francisco as possibilities. (ECF No. 48 at 3:8-12.) 14 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 15 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to 16 represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court 17 for the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in 18 certain exceptional circumstances the court may request the voluntary assistance of counsel 19 pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 20 Without a reasonable method of securing and compensating counsel, the court will seek 21 volunteer counsel only in the most serious and exceptional cases. In determining whether 22 “exceptional circumstances exist, the district court must evaluate both the likelihood of success 23 of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 24 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 25 In the present case, the court does not find the required exceptional circumstances. 26 Plaintiff requests counsel because “this is an old case” and he needs assistance to find one of the 27 Defendants. These are not exceptional circumstances under the law. While the Court has 28 determined that Plaintiff states cognizable claims against Defendants Bentacourt, Valdovinos, 1 Ochoa, and Sandaval for adverse conditions of confinement, this finding is not a determination 2 that Plaintiff is likely to succeed on the merits. Plaintiff’s conditions of confinement claims are 3 not complex, and based on a review of the record in this case Plaintiff can adequately articulate 4 his claims and respond to court orders. Thus, the court does not find the required exceptional 5 circumstances, and Plaintiff’s motion for appointment of counsel shall be denied without 6 prejudice to renewal of the motion at a later stage of the proceedings. 7 B. Motion for Stay of Proceedings 8 Plaintiff requests the Court to stay the proceedings in this case for 90 days, 180 days, or 9 until his criminal case is over. He expects to be transferred back to L.A. County Superior Court 10 on April 3, 2023 or April 4, 2023 for an evidentiary hearing in his criminal case, and he will not 11 have any time to litigate his civil case. 12 Discussion 13 On April 14, 2023, Plaintiff filed a notice of change of address to the Los Angeles County 14 Jail. (ECF No. 49.) Thus, it appears that Plaintiff has been transferred to Los Angeles for 15 proceedings in his criminal case. The Court shall use Plaintiff’s new mailing address for Court 16 correspondence until he files another notice of change of address with the Court. As such, 17 Plaintiff shall be apprised of any documents filed in his case. 18 Plaintiff’s motion for a stay of the proceedings in this case shall be denied, without 19 prejudice, to renewing the motion at a later stage of the proceedings if needed. This case is in its 20 early stages and none of the Defendants have yet appeared in the case. It is likely that a 90- or 21 180-day stay of the proceedings at this early stage would be prejudicial to Defendants. There are 22 no pending motions that require Plaintiff’s response, and if he cannot timely respond to 23 something filed in this case he can request an extension of time. Thus, the court finds no good 24 cause to stay the proceedings in this case at this time. Plaintiff’s motion for stay shall be denied, 25 without prejudice. 26 C. Request for Copy of First Amended Complaint 27 Plaintiff requests a copy of his First Amended Complaint. The Clerk does not ordinarily 28 provide free copies of case documents to parties. The Clerk charges $.50 per page for copies of 1 documents, and copies of a document up to twenty-five pages may be made by the Clerk’s Office 2 at this Court upon written request and prepayment of the copy fees. See 28 U.S.C. § 1914(b). 3 The fact that the court has granted leave for Plaintiff to proceed in forma pauperis does not entitle 4 him to free copies of documents from the Court. Under 28 U.S.C. § 2250, the Clerk is not required 5 to furnish copies without cost to an indigent petitioner except by order of the judge. 6 Plaintiff has not shown good cause for the court to send him a free copy of his First 7 Amended Complaint, which is 56 pages in length. To request a copy Plaintiff must submit a 8 request in writing to the Clerk, provide a large self-addressed envelope affixed with sufficient 9 postage, along with prepayment of the copy costs of $26.00 by money order payable to the Clerk. 10 III. CONCLUSION 11 Based on the foregoing, IT IS HEREBY ORDERED that: 12 1. Plaintiff’s motion for appointment of counsel is DENIED, without prejudice; 13 2. Plaintiff’s motion to stay the proceeding in this case pending resolution of 14 proceedings in his criminal case is DENIED, without prejudice; and 15 3. Plaintiff’s request for a free copy of his First Amended Complaint is DENIED. 16 IT IS SO ORDERED. 17 18 Dated: June 5, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28