(PC) Felix v. Clendenin ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SCOTT EMERSON FELIX, Case No. 1:19-cv-01784-AWI-BAM (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S RENEWED MOTIONS FOR APPOINTMENT 13 v. OF COUNSEL, IN FORMA PAUPERIS STATUS, AND EXTENSION OF TIME 14 CLENDENIN, et al., (ECF No. 56) 15 Defendants. Objection Deadline: November 7, 2022 16 17 I. Procedural Background 18 Plaintiff Scott Emerson Felix (“Plaintiff”) is a civil detainee proceeding pro se in this civil 19 rights action pursuant to 42 U.S.C. § 1983. Individuals detained pursuant to California Welfare 20 and Institutions Code § 6600 et seq. are civil detainees and are not prisoners within the meaning 21 of the Prison Litigation Reform Act. Page v. Torrey, 201 F.3d 1136, 1140 (9th Cir. 2000). 22 As Plaintiff is a civil detainee and has paid the filing fee, he is not a prisoner or 23 proceeding in forma pauperis, and therefore the Court ordered the complaint to be served without 24 screening. (ECF No. 13.) This action therefore proceeds on Plaintiff’s complaint, filed 25 December 23, 2019, (ECF No. 1), against Defendants California Department of State Hospitals 26 (“DSH”), Department of State Hospitals – Coalinga (“DSH – Coalinga”), Stephanie Clendenin, 27 Brandon Price, Francis Hicks, and Matthew Zelt.1 28 1 Defendants DSH, DSH – Coalinga, Clendenin, Price, and Hicks filed a motion to dismiss on August 2, 2022. (ECF 1 The Court did not find service appropriate for Defendants John and Jane Does 1–25 2 employed at DSH or Defendants John and Jane Does 1–25 employed at DSH – Coalinga, and on 3 July 24, 2020, ordered Plaintiff to identify those defendants with enough information to locate 4 them for service of process by filing a motion to amend that included a proposed amended 5 complaint substituting the true names of the Doe Defendants. (ECF No. 13.) 6 Plaintiff was granted several extensions of time to identify these defendants, and on 7 December 27, 2021 he submitted a filing which purported to be a motion to amend to substitute 8 the names of the Doe Defendants, including a photocopy of the original complaint filed on 9 December 23, 2019. (ECF No. 33.) That filing was signed and dated November 19, 2021. (Id.) 10 As the filing did not include any additional identifying information about the Doe Defendants, the 11 motion to amend was denied without prejudice on June 30, 2022. (ECF No. 36.) However, in 12 light of Plaintiff’s continued efforts to obtain the identities of the Doe Defendants, Plaintiff was 13 granted a further extension of time, up to September 1, 2022, to identify the Doe Defendants. 14 (Id.) 15 On September 16, 2022, following the expiration of that deadline and Plaintiff’s failure to 16 file a renewed motion to substitute the identities of any of the Doe Defendants, the Court issued 17 findings and recommendations to dismiss the Doe Defendants, without prejudice, pursuant to 18 Federal Rule of Civil Procedure 4(m). (ECF No. 46.) Plaintiff was directed to file any objections 19 within fourteen days from the date of service of that order. (Id. at 3–4.) 20 On October 3, 2022, Plaintiff filed a Memorandum, which the Court construed as a 21 motion for extension of time to file objections to the pending findings and recommendations. 22 (ECF No. 51.) The Court granted the motion, and Plaintiff’s objections are currently due on or 23 before November 7, 2022. (Id.) The Court further specified that while Plaintiff would be 24 permitted additional time to file his objections to the pending findings and recommendations, he 25 should not file an additional copy of his November 19, 2021 motion to amend, and if Plaintiff had 26 discovered new information regarding the identities of the Doe Defendants since filing the 27 No. 42.) Defendant Zelt joined in the motion to dismiss on October 11, 2022. That motion is fully briefed and 28 pending before the Court. 1 November 19, 2021 motion to amend, he may discuss that information, and why it was not 2 presented to the Court at an earlier time, in his objections. (Id. at 3.) 3 II. Plaintiff’s Renewed Motions 4 Currently before the Court is Plaintiff’s filing, received October 19, 2022, which contains: 5 (1) a renewed motion for appointment of counsel; (2) a renewed motion to grant Plaintiff’s 6 application for in forma pauperis status; (3) a request for an extension of time until October 31, 7 2022 to research whether Plaintiff ever received the Court’s August 26, 2021 order, (ECF No. 8 21), to respond to the Court’s June 30, 2022 order, (ECF No. 36); and (4) a request for a courtesy 9 copy of the Court’s August 26, 2021 order, (ECF No. 21). (ECF No. 56.) Although Defendants 10 have not yet had an opportunity to file a response, the Court finds a response unnecessary. The 11 motions are deemed submitted. Local Rule 230(l). 12 Plaintiff’s motions for appointment of counsel and for in forma pauperis status are 13 summarily denied. The Court has previously denied Plaintiff’s motions for appointment of 14 counsel, (ECF Nos. 21, 25, 36, 39), and motions for in forma pauperis status, (ECF Nos. 10, 21, 15 25, 36, 39), and Plaintiff presents no new argument or evidence to support a different 16 determination. 17 To the extent Plaintiff is requesting an extension of time to respond to the Court’s June 30, 18 2022 order, (ECF No. 36), which provided Plaintiff with an additional sixty (60) days to file a 19 motion to amend with a proposed first amended complaint that identifies the true names of the 20 Doe Defendants with enough information to locate them for service of process, this request is 21 denied. Although Plaintiff contends that he did not receive the Court’s August 26, 2021 order, 22 (ECF No. 21), which set the original deadline for Plaintiff to file a motion to amend substituting 23 the names of the Doe Defendants, at no point does Plaintiff state that he did not receive the 24 Court’s June 30, 2022 order, (ECF No. 36). In fact, Plaintiff previously declared that he received 25 the June 30, 2022 order extending the deadline to identify the Doe Defendants, in a declaration 26 attached to his July 27, 2022 motion to appoint counsel, motion to grant in forma pauperis status, 27 and motion for extension of time, (ECF No. 38).2 Accordingly, Plaintiff has not provided good 28 2 The motion was received and docketed by the Court on July 27, 2022. (ECF No. 38.) For Plaintiff’s records, the 1 cause for an extension of any deadline set by the June 30, 2022 order extending the deadline to 2 file a motion to amend, (ECF No. 36). 3 If Plaintiff is instead requesting an extension of time to file his objections to the pending 4 findings and recommendations to dismiss the Doe Defendants, (ECF No. 46), that request is 5 denied as moot. On October 5, 2022, the Court issued an order granting Plaintiff a thirty-day 6 extension of time to file objections to the pending and findings and recommendations. (ECF No. 7 52.) Those objections are currently due on or before November 7, 2022, which is a week beyond 8 the time Plaintiff requests in the instant motion. Therefore, any extension of this deadline to 9 October 31, 2022, is unnecessary. 10 Plaintiff is reminded that, pursuant to the October 5, 2022 order, he is permitted to file 11 objections to the pending findings and recommendations. However, Plaintiff should not file an 12 additional copy of his November 19, 2021 motion to amend, as the Court has already reviewed 13 and rejected the arguments contained in that filing. If Plaintiff has discovered new information 14 regarding the identities of the Doe Defendants since he filed the November 19, 2021 motion to 15 amend, he may discuss that information, and why it was not presented to the Court at an earlier 16 time, in his objections to the findings and recommendations. 17 III. Plaintiff’s Request for Courtesy Copy 18 Finally, Plaintiff’s request for a courtesy copy of the Court’s August 26, 2021 order, (ECF 19 No. 21), is denied. Plaintiff is informed that the Clerk of the Court does not ordinarily provide 20 free copies of case documents to parties, and Plaintiff is responsible for maintaining his own 21 records for this proceeding. Further, even if Plaintiff were proceeding in forma pauperis in this 22 action, that status would not entitle him to free copies of documents from the Court. E.g., Hullom 23 v. Kent, 262 F.2d 862, 863 (6th Cir. 1959.) The Clerk charges $0.50 per page for copies of 24 documents. See 28 U.S.C. § 1914(b). Copies of up to twenty pages may be made by the Clerk’s 25 Office at this Court upon written request, prepayment of the copy fees, and submission of a large, 26 self-addressed stamped envelope. The August 26, 2021 order, (ECF No. 21), is 6 pages long, for 27 a total copy fee of $3.00. 28 motion contains of proof of service by mail signed and dated July 20, 2022. (Id. at 27.) 1 In addition, the Court finds Plaintiff’s contention that he never received a copy of the 2 August 26, 2021 order, (ECF No. 21), not credible. That order, among other matters, found 3 service appropriate for the named defendants and forwarded the necessary service documents to 4 Plaintiff for completion and return within thirty days. (ECF No. 21, p. 6.) On September 27, 5 2021, those completed service documents were submitted by Plaintiff, together with a motion 6 indicating that he had complied with the Court’s August 26, 2021 order for service. (ECF Nos. 7 22, 23.) The next day, the Court directed the United States Marshal to serve the complaint, 8 together with the same completed service documents, on the named defendants. (ECF No. 24.) 9 As no other orders were issued containing the necessary service documents, and no other orders 10 were issued on August 26, 2021 in this case, the docket and Plaintiff’s own filings confirm that 11 Plaintiff timely received the Court’s August 26, 2021 order, understood its directives, and 12 responded accordingly. 13 IV. Order 14 Based on the foregoing, it is HEREBY ORDERED that: 15 1. Plaintiff’s motions to appoint counsel, to grant in forma pauperis status, and for extension 16 of time, (ECF No. 56), are DENIED; and 17 2. Plaintiff’s written objections to the September 16, 2022 findings and recommendations to 18 dismiss Doe Defendants from action without prejudice, (ECF No. 46), remain due on or 19 before November 7, 2022. 20 IT IS SO ORDERED. 21 22 Dated: October 20, 2022 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28