(PC) Felix v. Clendenin ( 2022 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 SCOTT EMERSON FELIX, Case No. 1:19-cv-01784-AWI-BAM (PC) 10 Plaintiff, ORDER DENYING PLAINTIFF’S RENEWED MOTIONS FOR APPOINTMENT 11 v. OF COUNSEL AND IN FORMA PAUPERIS STATUS 12 CLENDENIN, et al., (ECF No. 38) 13 Defendants. ORDER DISCHARGING JULY 1, 2022 ORDER TO SHOW CAUSE 14 (ECF No. 37) 15 ORDER DIRECTING DEFENDANTS TO RE- SERVE MOTION TO DISMISS ON 16 PLAINTIFF WITHIN SEVEN (7) DAYS 17 ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR EXTENSION OF TIME TO 18 OPPOSE MOTION TO DISMISS (ECF No. 38) 19 FORTY-FIVE (45) DAY DEADLINE 20 21 Plaintiff Scott Emerson Felix (“Plaintiff”) is a civil detainee proceeding pro se in this civil 22 rights action pursuant to 42 U.S.C. § 1983. Individuals detained pursuant to California Welfare 23 and Institution Code § 6600 et seq. are civil detainees and are not prisoners within the meaning of 24 the Prison Litigation Reform Act. Page v. Torrey, 201 F.3d 1136, 1140 (9th Cir. 2000). 25 As Plaintiff is a civil detainee and has paid the filing fee, he is not a prisoner or 26 proceeding in forma pauperis, and therefore the Court ordered the complaint to be served without 27 screening by the Court. (ECF No. 13.) This action therefore proceeds on Plaintiff’s complaint, 28 filed December 23, 2019, (ECF No. 1), against Defendants California Department of State 1 Hospitals (“DSH”), Department of State Hospitals – Coalinga (“DSH – Coalinga”), Stephanie 2 Clendenin, Brandon Price, Francis Hicks, and Matthew Zelt. 3 Plaintiff previously filed motions for appointment of counsel and requesting in forma 4 pauperis status, which were denied. (ECF No. 21.) Plaintiff has repeatedly renewed these 5 requests by raising the same arguments, (ECF Nos. 23, 33), and the Court has repeatedly denied 6 the requests on the same grounds, (ECF Nos. 25, 35). 7 On November 29, 2021, Defendants DSH, DSH – Coalinga, Clendenin, Price, and Hicks 8 filed a motion to dismiss. (ECF Nos. 28–30.) Pursuant to Local Rule 230(l) and Federal Rule of 9 Civil Procedure, Plaintiff’s opposition or statement of non-opposition was due on or before 10 December 23, 2021. On July 1, 2022, following Plaintiff’s failure to file an opposition or other 11 response, the Court issued an order for Plaintiff to show cause why this action should not be 12 dismissed, with prejudice, for failure to prosecute. (ECF No. 37.) 13 Plaintiff filed a response to the Court’s order to show cause on July 27, 2022. (ECF No. 14 38.) In his response, Plaintiff again renews his requests for appointment of counsel and for in 15 forma pauperis status. Plaintiff contends that due to continued denial of access to the law library, 16 computer lab, and research computer due to COVID quarantines and administrative ordered lock- 17 downs, he cannot adequately respond to the Court’s orders or to Defendants’ motion to dismiss. 18 Plaintiff further requests a 60-day continuance to respond to Defendants’ motion to dismiss, 19 stating that he has never received a copy of the motion to dismiss and therefore is unable to file a 20 response. 21 Defendants have not yet had an opportunity to respond to Plaintiff’s motion, but the Court 22 finds a response unnecessary. The motion is deemed submitted. Local Rule 230(l). 23 As Plaintiff’s renewed requests for appointment of counsel and in forma pauperis status 24 reiterate arguments raised in the prior motions, and are primarily comprised of photocopies of his 25 prior motions, those requests are again denied for the reasons discussed in the Court’s August 26, 26 2021 order. (ECF No. 21.) 27 In light of Plaintiff’s assertion that he has not yet received Defendants’ motion to dismiss, 28 the Court finds it appropriate to grant, in part, Plaintiff’s request for an extension of time to file an 1 opposition or statement of non-opposition to the motion to dismiss. Defendants are directed to re- 2 serve a copy of the motion to dismiss and all applicable attachments to Plaintiff at his current 3 address of record, and Defendants are instructed to include Plaintiff’s patient number 4 (550−4) in the address. Defendants are advised to include Patient’s complete address and 5 patient number, as set forth on the docket, in all future correspondence directed to Plaintiff. 6 Based on the foregoing, it is HEREBY ORDERED as follows: 7 1. Plaintiff’s renewed motion for appointment of counsel, (ECF No. 38), is DENIED, 8 without prejudice; 9 2. Plaintiff’s renewed motion for in forma pauperis status, (ECF No. 38), is DENIED, as 10 moot; 11 3. Plaintiff’s motion for extension of time to file a response to Defendants’ motion to 12 dismiss, (ECF No. 38), is GRANTED IN PART; 13 4. The July 1, 2022 order to show cause, (ECF No. 37), is DISCHARGED; 14 5. Within seven (7) days from the date of service of this order, Defendants shall re-serve a 15 copy of the November 29, 2021 motion to dismiss, (including ECF Nos. 28–30 and any 16 applicable attachments), to Plaintiff at his current address of record, including Plaintiff’s 17 patient number, as set forth on the docket; 18 6. Within forty-five (45) days from the date of service of this order, Plaintiff shall file an 19 opposition or statement of non-opposition to Defendants’ motion to dismiss; and 20 7. Plaintiff is warned that if he fails to comply with the Court’s order, this matter will 21 be dismissed, with prejudice, for failure to prosecute and failure to comply with a 22 court order. 23 IT IS SO ORDERED. 24 25 Dated: July 28, 2022 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 26 27 28