King v. Sayre et al
Filing
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ORDER signed by Judge Garland E. Burrell, Jr on 6/10/2011 ORDERING that the court will defer ruling on the 5/11/11, motion for injunctive relief until an amended cmplt is filed; pltf's 21 motion for a 30 day extension to file an amended cmplt is GRANTED and pltf to file an amended cmplt by 7/1/2011; pltf's 23 motion to appoint counsel is DENIED w/out prejudice; and the clerk to send pltf a copy of the 2/25/2011 screening order. (Yin, K)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MAILLIARD L. KING.
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Plaintiff,
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vs.
M.C. SAYRE, et. al.,
Defendants.
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No. CIV S-10-3216 GEB GGH P
ORDER
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis. He seeks
relief pursuant to 42 U.S.C. § 1983.
On February 25, 2011, the court dismissed the original complaint with leave to
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amend in 28 days. The court noted that plaintiff alleged defendants were deliberately indifferent
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to his serious medical needs, yet plaintiff failed to identify his medicals needs or how defendants
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violated his constitutional rights. Plaintiff’s request for an extension of time to file an amended
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complaint was granted and the amended complaint was to be due on May 22, 2011.
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On April 21, 2011 plaintiff filed a motion (Doc. 18) for medical care that the court
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construed as a motion for a preliminary injunction. Plaintiff stated that his chemotherapy
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treatment was stopped in the middle and when he filed an appeal; other treatment stopped.
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Plaintiff did not identify what he was receiving treatment for or what other treatment stopped.
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Plaintiff then described how the (terminated) chemotherapy has adversely effected him, but he
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wanted the chemotherapy to continue as soon as possible. On April 22, 2011, the court deferred
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ruling on the preliminary injunction noting there was no operative complaint in the case and the
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court could not determine the appropriate defendant or even the substance of plaintiff’s claims.
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The court stated that plaintiff should file an amended complaint and then the court would rule on
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the preliminary injunction. On May 11, 2011, plaintiff filed another motion for injunctive relief.
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Plaintiff has still not filed an amended complaint but requested an extension to file an amended
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complaint on May 17, 2011.
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The court will defer ruling on plaintiff’s May 11, 2011, motion for injunctive
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relief for the same reasons regarding the prior motion for injunctive relief. In the new motion,
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plaintiff lists four defendants who are either wardens or guards at the facility, however in the
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body of the motion, the defendants are not mentioned and there is no reference to any specific
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acts by the defendants. Plaintiff generally states that the defendants are retaliating against him
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and illegally placed him in Ad. Seg. but provides no specific information. More importantly,
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plaintiff states that his medical care is being interrupted and discontinued, including his
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chemotherapy. While this could prove serious, plaintiff does not identify any defendant
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meddling with his medical treatment, and none of the defendants are doctors. It is not clear, and
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plaintiff does not say, how guards or wardens are responsible for ending medical treatment.
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Plaintiff also needs to be more specific about his medical problems and the exact aspects of his
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medical care that are being denied. Simply saying his chemotherapy was stopped is insufficient.
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Plaintiff should describe his medical problems, what treatment is being discontinued, how that is
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affecting him and what defendants are responsible. Plaintiff should not just annex exhibits to a
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motion to present this information.
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Plaintiff has also requested the appointment of counsel. The United States
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Supreme Court has ruled that district courts lack authority to require counsel to represent
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indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298
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(1989). In certain exceptional circumstances, the court may request the voluntary assistance of
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counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.
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1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). In the present case, at
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this time, the court does not find the required exceptional circumstances. Plaintiff’s motion for
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the appointment of counsel will therefore be denied without prejudice.
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Accordingly, IT IS HEREBY ORDERED that:
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1. The court will defer ruling on the May 11, 2011, motion for injunctive relief
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until an amended complaint is filed;
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2. Plaintiff’s May 17, 2011, motion for a 30 day extension (Doc. 21) to file an
amended complaint is granted and plaintiff shall file an amended complaint by July 1, 2011.
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3. Plaintiff’s May 23, 2011, motion to appoint counsel (Doc. 23) is denied,
without prejudice;
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4. The Clerk of the Court shall send plaintiff a copy of the February 25, 2011,
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(Doc. 13) screening order.
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DATED: June 10, 2011
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/s/ Gregory G. Hollows
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GREGORY G. HOLLOWS
UNITED STATES MAGISTRATE JUDGE
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