(PC) Newsome v. Loterzstain ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SHELDON RAY NEWSOME, Case No. 2:19-cv-00307-DAD-JDP (PC) 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 M. LOTERZSTAIN, et al., 15 Defendants. 16 17 Pending before me are numerous motions, primarily filed by plaintiff. 18 Plaintiff’s Motions to Appoint Counsel 19 Plaintiff has filed numerous motions to appoint counsel. ECF Nos. 105, 107, 131, & 136. 20 I will deny all of these motions. Plaintiff has also filed a related motion to attach exhibits to his 21 last motion to appoint counsel. ECF No. 137. I will grant this motion, and I have considered the 22 attached exhibits in my decision. 23 Plaintiff does not have a constitutional right to appointed counsel in this action, see Rand 24 v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and I lack the authority to require an attorney to 25 represent plaintiff. See Mallard v. U.S. District Court for the Southern District of Iowa, 490 U.S. 26 296, 298 (1989). The court may request the voluntary assistance of counsel. See 28 U.S.C. 27 § 1915(e)(1) (“The court may request an attorney to represent any person unable to afford 28 counsel”); Rand, 113 F.3d at 1525. However, without a means to compensate counsel, I will seek 1 volunteer counsel only in exceptional circumstances. In determining whether such circumstances 2 exist, “the district court must evaluate both the likelihood of success on the merits [and] the 3 ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues 4 involved.” Rand, 113 F.3d at 1525 (internal quotation marks and citations omitted). 5 I cannot conclude that exceptional circumstances requiring the appointment of counsel are 6 present here. Plaintiff alleges that medical conditions, specifically clawed hands and a lack of 7 education, weigh in favor of appointment of counsel. ECF Nos. 107 at 2 & 136 at 1-2. Thus far, 8 however, he has proven able to file numerous motions on his own. Plaintiff may request 9 reasonable extensions of time when necessary. 10 Motions for Sanctions 11 Plaintiff has filed two motions for sanctions, ECF Nos. 110 & 134, wherein he argues that 12 defendants should be sanctioned for interfering with his access to courts by confiscating and 13 possibly destroying his personal property. ECF No. 110 at 8. These are the same arguments that 14 I recently rejected in a separate order. ECF No. 135. Accordingly, these other motions for 15 sanctions are also denied. I will also deny defendants’ motion for clarification of the motion for 16 sanctions, ECF No. 114, as moot. 17 Motion to Strike Notice of Appeal 18 Plaintiff requests that his notice of appeal, ECF No. 111, be stricken. ECF No. 115. Any 19 request to withdraw an appeal must be filed with the Court of Appeals and, moreover, it appears 20 that plaintiff’s appeal has already been dismissed. ECF No. 118. This motion is denied. 21 Request for Judicial Notice 22 Plaintiff has filed a “request for judicial notice” that is, in fact, a list of complaints 23 regarding his litigative resources and access to courts. ECF No. 116 at 2-4. Plaintiff requests 24 appointment of counsel and certificates of appeal in two of his other cases that have been 25 dismissed. Id. at 4. His request for counsel is denied for the same reasons cited above in the 26 denial of his motions for appointment of counsel. Additionally, I cannot grant or modify a 27 certificate of appeal in another case; claims for such relief must be brought in the case in which 28 1 the certificate was denied. Defendant’s request for clarification as to this motion, ECF No. 121, 2 is denied as moot. 3 Motions for Extension of Time 4 Plaintiff asks for an extension of time and references Judge Drozd’s February 24, 2023 5 order adopting my findings and recommendations. ECF No. 117. Plaintiff does not state what he 6 needs an extension of time to do and, as such, his motion is denied. 7 Similarly, plaintiff’s motion for extension of time to respond to Judge Drozd’s order 8 denying his motion for reconsideration, ECF No. 127, is DENIED. No response to Judge Drozd’s 9 final order is contemplated by the federal rules of civil procedure. 10 Motions for Medical Evaluation 11 Finally, plaintiff has filed two motions seeking an order directing the California Health 12 Care Facility to medically evaluate him. ECF Nos. 130 & 133. Therein, he alleges that a non- 13 defendant physician, Shafali Awatani and Francis Ko, have refused to follow unspecified care 14 recommendations from outside physicians. ECF No. 130 at 1-2. I construe these as motions for 15 preliminary injunctive relief and recommend that they be denied as insufficiently related to the 16 allegations against other defendants at issue in this suit. See Pac. Radiation Oncology, LLC v. 17 Queen’s Med. Ctr., 810 F.3d 631, 636 (9th Cir. 2015) (“A preliminary injunction is appropriate 18 when it grants relief of the same nature as that to be finally granted.”). 19 Accordingly, it is hereby ORDERED that: 20 1. Plaintiff’s motions to appoint counsel, ECF Nos. 105, 107, 131, & 136, motions 21 for sanctions, ECF Nos. 110 & 134, motion to strike, ECF No. 115, request for judicial notice, 22 ECF No. 116, and motions for extensions of time, ECF Nos. 117 & 127, are DENIED. His 23 motion to file exhibits, ECF No. 137, is GRANTED. 24 2. Defendant’s requests for clarification, ECF Nos. 114 & 121, are DENIED as moot. 25 Further, it is hereby RECOMMENDED that: 26 1. Plaintiff’s motions for medical evaluation, ECF Nos. 130 & 133, construed as 27 motions for preliminary injunctive relief, be DENIED. 28 These findings and recommendations are submitted to the United States District Judge 1 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days of 2 | service of these findings and recommendations, any party may file written objections with the 3 | court and serve a copy on all parties. Such document should be captioned “Objections to 4 | Magistrate Judge’s Findings and Recommendations.” Any response shall be served and filed 5 | within fourteen days of service of the objections. The parties are advised that failure to file 6 | objections within the specified time may waive the right to appeal the District Court’s order. 7 | Turner vy. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 8 | 1991). 9 10 IT IS SO ORDERED. ll ( ie — Dated: _ July 28, 2023 q-—— 12 JEREMY D. PETERSON 3 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28