(PC) Murillo v. Godfrey ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MONA SALCIDA MURILLO, No. 2:23-cv-00667-KJM-EFB (PC) 12 Plaintiff, 13 v. ORDER 14 D. GODFREY, et al. 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in an action 18 brought under 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 19 pursuant to 28 U.S.C. § 636(b)(1). There are a number of issues pending on the docket – plaintiff 20 filed an amended complaint1 on January 11, 2024 that must be screened (ECF No. 31) and has 21 also filed several motions: (1) to stay consideration of any motions for summary judgment until 22 discovery is completed (ECF No. 33), (2) for the setting of a discovery and scheduling conference 23 (ECF No. 34), (3) for appointment of counsel (ECF No. 35), (4) for an order directing defendants 24 to re-file their pending combined motions for summary adjudication and to dismiss as two 25 separate motions (ECF No. 39), and (5) for a court order that “all filings relating to the first 26 27 1 Plaintiff has titled this amended complaint as her “First Amended Complaint.” ECF No. 31. The prior complaint was titled “Third Amended Complaint.” ECF No. 14. For the sake of 28 clarity, the court will refer to the most-recently filed amended complaint by its date. 1 amended complaint” are moot (ECF No. 40). During the pendency of these motions, defendants 2 have withdrawn the portion of their combined motions seeking summary adjudication. ECF No. 3 48 at 4. The motion to dismiss remains pending. 4 I. The Amended Complaint 5 Federal courts must engage in a preliminary screening of cases in which prisoners seek 6 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 7 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of 8 the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief 9 may be granted,” or “seeks monetary relief from a defendant who is immune from such relief.” 10 Id. § 1915A(b). 11 The court has reviewed plaintiff’s January 11, 2024 amended complaint pursuant to § 12 1915A and concludes that it states potentially cognizable claims against defendants Campbell, 13 Milliken, and Allen for excessive force in violation of the Eighth Amendment and retaliation in 14 violation of the First Amendment, against defendant Campbell for deliberate indifference in 15 violation of the Eighth Amendment, and against defendant Allen for retaliation in violation of the 16 First Amendment in connection with a February 22, 2017 rules violation report. Accordingly, the 17 case proceeds on the January 11, 2024 amended complaint, which supersedes plaintiff’s prior 18 complaints. 19 II. Plaintiff’s Motion to Stay 20 Plaintiff asks the court to stay the filing and/or consideration of any summary judgment 21 motions until the parties finish discovery. ECF No. 33. This motion has been rendered moot by 22 defendants’ withdrawal of their motion for summary adjudication. ECF No. 48 at 4. 23 III. Plaintiff’s Motion for a Discovery and Scheduling Conference 24 Plaintiff seeks the setting of a discovery and scheduling conference. As defendants have 25 yet to file an answer, it would be premature to issue a further schedule. Once defendants have 26 filed an answer, or the court has denied any motion to dismiss they may file (or re-file, see section 27 V, below), the court will issue a discovery and scheduling order governing the case going 28 forward. 1 IV. Plaintiff’s Motion for Appointment of Counsel 2 Plaintiff asks the court to appoint counsel. District courts lack authority to require counsel 3 to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 4 296, 298 (1989). In exceptional circumstances, the court may request an attorney to voluntarily 5 to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 6 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When 7 determining whether “exceptional circumstances” exist, the court must consider the likelihood of 8 success on the merits as well as the ability of the plaintiff to articulate his claims pro se in light of 9 the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). 10 Plaintiff argues that she has medical and mental health issues such that counsel is needed 11 to effectively litigate. But plaintiff has not explained how her health issues prevent her from 12 litigating the instant case; in fact, she has provided no evidence of her health problems. 13 Moreover, plaintiff has aggressively and astutely litigated the case thus far, as evidenced by the 14 numerous motions the court addresses in this order. 15 Plaintiff also argues that she will face certain difficulties in litigating as a consequence of 16 her incarceration. But every prisoner litigant faces such complications. Beckett v. Scalia, No. 17 1:20-cv-01468-JLT-CDB (PC), 2023 U.S. Dist. LEXIS 213300, at *3 (E.D. Cal. Nov. 30, 2023) 18 (because “the Court has no reasonable method of securing and compensating counsel, the Court 19 will seek volunteer counsel only in extraordinary cases”). Lastly, plaintiff argues, citing a 2010 20 case from the Seventh Circuit, that Heck is a complex issue for which the aid of counsel is 21 necessary. The court notes that Heck law has been clarified significantly since 2010. Nettles v. 22 Grounds, 830 F.3d 922, 930 (9th Cir. 2016). And, as defendants have withdrawn their Heck- 23 based motion for summary adjudication, the issue is not presently presenting any complexities at 24 all. 25 The case is currently at such an early stage that the court cannot assess the likelihood that 26 plaintiff will succeed on the merits. But plaintiff thus far has articulated her claims well. The 27 court finds that plaintiff has failed to show exceptional circumstances warranting appointment of 28 counsel at this time. 1 V. Plaintiff’s Motions Regarding Defendants’ Pending Joint Motions 2 Plaintiff asks the court to order defendants to refile their joint Heck-based motion for 3 summary judgment and motion to dismiss as separate motions. ECF No. 39. Plaintiff argues that 4 the joinder of two motions governed by different Federal Rules of Civil Procedure is confusing a 5 prejudicial to plaintiff. (As noted above, since plaintiff filed this request, defendants have 6 withdrawn the motion for summary adjudication.) 7 Plaintiff also asks the court to “order all filings relating to the first amended complaint 8 moot” because the January 11, 2024 amended complaint was properly filed under Federal Rule of 9 Civil Procedure 15(a)(1)(C). ECF No. 40. Plaintiff argues that defendants’ joint dispositive 10 motions should therefore be determined moot. 11 The docket in this action has become unduly complicated by defendants’ joint motion, the 12 parties’ numerous procedural motions, the amended complaint, and defendants’ recent 13 withdrawal of the portion of the joint motion seeking summary adjudication. However, the 14 January 11, 2024 amended complaint – filed shortly after that amended complaint but before its 15 screening by the court – is now the operative pleading. Defendants should be permitted to redraft 16 their motion so that it is directed solely at the current operative complaint. Accordingly, the 17 pending motion to dismiss, along with all pending attendant procedural motions (ECF Nos. 44, 18 45, 49, 51, and 53), is denied without prejudice. 19 VI. Order 20 For the foregoing reasons, it is hereby ORDERED that: 21 1. The January 11, 2024 amended complaint (ECF No. 31) states potentially cognizable 22 claims against defendants Campbell, Milliken, and Allen for excessive force in 23 violation of the Eighth Amendment and retaliation in violation of the First 24 Amendment, against defendant Campbell for deliberate indifference in violation of the 25 Eighth Amendment, and against defendant Allen for retaliation in violation of the First 26 Amendment in connection with a February 22, 2017 rules violation report. 27 Accordingly, the case proceeds on the January 11, 2024 amended complaint, which 28 supersedes plaintiff’s prior complaints. 1 2. Plaintiffs January 29, 2024 motion to stay (ECF No. 33) is DENIED as moot. 2 3. Plaintiff's January 29, 2024 motion for a discovery and scheduling conference (ECF 3 No. 34) is DENIED. 4 4. Plaintiffs January 29, 2024 motion for appointment of counsel (ECF No. 35) is 5 DENIED. 6 5. Plaintiff's February 26, 2024 motion for an order requiring defendants to file their 7 Heck-based motion for summary adjudication and motion to dismiss separately (ECF 8 No. 39) is DENIED. 9 6. Plaintiff's February 26, 2024 motion for the court to order all filings relating to the 10 prior operative complaint moot (ECF No. 40) is DENIED. 11 7. Defendants’ motion to dismiss (ECF No. 36) is DENIED without prejudice to the 12 filing of a motion addressed solely to the January 11, 2024 operative amended 13 complaint. Any such motion must be filed within 30 days of this order. 14 8. All related procedural motions (ECF Nos. 44, 45, 49, 51, and 53) are denied as moot. 15 16 || Dated: May 17, 2024 Za?! ith LACEY EDMUND F. BRENNAN 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28