(PC) Hilson v. Arnett et al, No. 1:2015cv01240 - Document 63 (E.D. Cal. 2018)

Court Description: ORDER Granting Motion for Extension of Time; ORDER Denying Motion for Appointment of Counsel; FINDINGS and RECOMMENDATIONS to Deny Request for Injunctive Relief signed by Magistrate Judge Michael J. Seng on 04/02/2018. Referred to Judge Drozd; Objections to F&R due by 4/20/2018. (Flores, E)
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(PC) Hilson v. Arnett et al Doc. 63 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RASHEED HILSON, SR., 12 13 14 15 16 17 18 19 Plaintiff, Case No. 1:15-cv-01240-DAD-MJS (PC) ORDER GRANTING MOTION FOR EXTENSION OF TIME v. JESSE ARNETT, et al., Defendants. ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL FINDINGS AND RECOMMENDATION TO DENY REQUEST FOR INJUNCTIVE RELIEF (ECF NO. 59) FOURTEEN DAY OBJECTION DEADLINE CLERK TO SEND PLAINTIFF NOTICE OF CHANGE OF ADDRESS FORM 20 21 22 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil 23 rights action brought pursuant to 42 U.S.C. § 1983. This matter proceeds on Plaintiff’s 24 Eighth Amendment excessive force claims against Defendants Arnett, Gamboa, 25 Potzernitz, Flores, and CO Jane Doe, and an Eighth Amendment failure to protect claim 26 against Defendant Marsh. (ECF Nos. 16, 18, 54, 57.) 27 28 Dockets.Justia.com 1 Before the Court is Plaintiff’s February 20, 2018 motion requesting an extension 2 of the discovery cut-off. (ECF No. 59.) He also there raises additional issues which will 3 be addressed below. Defendants filed no response and the time for doing so has 4 passed. The matter is submitted. Local Rule 230(l). 5 I. Change of Address 6 Plaintiff’s request for extension of time is based on his contention that the Court 7 failed to update his address for nearly a year, and that failure has interfered with his 8 ability to conduct discovery. 9 At the initiation of this case, Plaintiff was advised of the requirement to keep the 10 Court apprised of his current address. Upon review of the docket, it appears that Plaintiff 11 filed, on March 20, 2017, a motion for appointment of counsel, stating that he had been 12 moved to a crisis bed at California State Prison – Los Angeles County (“CSP-LAC”). 13 (ECF No. 39.) He did not specifically request a change to his address of record, and his 14 address of record remained the institution where he previously had been incarcerated, 15 California Correctional Institution (“CCI”). Over the course of the following year, Plaintiff 16 filed additional motions listing his address at CSP-LAC, none of which requested a 17 change of address. Mail directed to Plaintiff at his address of record at CCI was not 18 returned to the Court. 19 It was not until December 11, 2017 that Plaintiff formally filed a Notice of Change 20 of Address, changing his address of record to CSP-LAC. (ECF No. 55.) At that time, his 21 official address was updated. 22 Plaintiff is aware of the procedure for updating his address, having filed a Notice 23 of Change of Address on two separate occasions. (ECF Nos. 12, 55.) The Court will 24 direct the Clerk’s Office to send Plaintiff additional change of address form. To prevent 25 further delays in Plaintiff’s receipt of Court mail, Plaintiff should utilize this form for future 26 address changes or, at the very least, should title his submission as “Notice of Change 27 of Address.” 28 2 1 II. Motion for Extension of Time 2 As stated, Plaintiff’s request for extension of time is based on his contention that 3 the Court failed to update his address and thereby interfered with his ability to conduct 4 discovery. It appears that the Court’s discovery and scheduling order was served on 5 Plaintiff at CCI, but that Plaintiff was then at CSP-LAC. Again, the mail served on Plaintiff 6 at CCI was not returned to the Court. It therefore is unclear whether or when Plaintiff 7 may have received the Court’s discovery and scheduling order. 8 In light of these circumstances, and the Court having previously granted an 9 extension to Defendants to conduct Plaintiff’s deposition, the Court will grant Plaintiff’s 10 unopposed motion to extend the discovery cut-off by ninety days. 11 III. Appointment of Counsel 12 Plaintiff requests the appointment of counsel. 13 Plaintiff does not have a constitutional right to appointed counsel in this action, 14 Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an 15 attorney to represent plaintiff pursuant to 28 U.S.C. ' 1915(e)(1), Mallard v. United 16 States District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). In 17 certain exceptional circumstances the court may request the voluntary assistance of 18 counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. However, without a 19 reasonable method of securing and compensating counsel, the court will seek volunteer 20 counsel only in the most serious and exceptional cases. In determining whether 21 Aexceptional circumstances exist, the district court must evaluate both the likelihood of 22 success of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in 23 light of the complexity of the legal issues involved.@ Id. (internal quotation marks and 24 citations omitted). 25 26 27 28 In the present case, the court does not find the required exceptional circumstances. Even if it is assumed that plaintiff is not well versed in the law and that he has made serious allegations which, if proved, would entitle him to relief, his case is not exceptional. This court is faced with similar cases almost daily. Further, at this early 3 1 stage in the proceedings, the court cannot make a determination that plaintiff is likely to 2 succeed on the merits, and based on a review of the record in this case, the court does 3 not find that plaintiff cannot adequately articulate his claims. Id. For the foregoing reasons, plaintiff=s motion for the appointment of counsel will be 4 5 denied without prejudice. 6 IV. Injunctive Relief 7 Plaintiff requests an injunction against the California Department of Corrections 8 and, particularly, staff at CSP-LAC, preventing retaliation and harassment. He asks the 9 Court to issue a restraining order against anyone who does harass him. 10 The Court does not have jurisdiction to order injunctive relief which would require 11 directing parties not before the Court to take action. Zepeda v. United States Immigration 12 & Naturalization Serv., 753 F.2d 719, 727 (9th Cir. 1985) (“A federal court may issue an 13 injunction if it has personal jurisdiction over the parties and subject matter jurisdiction 14 over the claim; it may not attempt to determine the rights of persons not before the 15 court.”). CDCR and CSP-LAC are not parties to this action. This case does not confer on 16 the Court jurisdiction over any individuals employed at CSP-LAC. 17 Additionally, it is generally appropriate to grant a preliminary injunction only for 18 “intermediate relief of the same character as that which may be granted finally.” De 19 Beers Consol. Mines v. U.S., 325 U.S. 212, 220 (1945); see Johnson v. Couturier, 572 20 F.3d 1067, 1084 (9th Cir. 2009) (concluding that preliminary injunction at issue did not 21 deal with a wholly unrelated matter). A court should not issue an injunction when the 22 relief sought is not of the same character, and the injunction deals with a matter lying 23 wholly outside the issues in the underlying action. De Beers, 325 U.S. at 220. Here, the 24 underlying claim involves claims of excessive force and failure to protect, not 25 harassment or retaliation. 26 27 Injunctive relief is not appropriate or available to Plaintiff on these facts. The Court will recommend that Plaintiff’s request be denied. 28 4 1 2 V. Conclusion, Order, and Recommendation Based on the foregoing, it is HEREBY ORDERED that: 3 1. Plaintiff’s request to extend the discovery cut-off is granted; 4 2. Plaintiff is granted an additional ninety days from the date of service of this 5 order in which to conduct discovery; 6 3. Plaintiff’s request for the appointment of counsel is denied; and 7 4. The Clerk of Court is directed to send Plaintiff a blank change of address 8 9 10 form. Additionally, it is HEREBY RECOMMENDED that Plaintiff’s request for injunctive relief be DENIED. 11 These findings and recommendations will be submitted to the United States 12 District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. 13 § 636(b)(1). Within fourteen (14) days after being served with the findings and 14 recommendations, the parties may file written objections with the Court. The document 15 should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” 16 A party may respond to another party’s objections by filing a response within fourteen 17 (14) days after being served with a copy of that party’s objections. The parties are 18 advised that failure to file objections within the specified time may result in the waiver of 19 rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter 20 v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 21 22 23 IT IS SO ORDERED. Dated: April 2, 2018 /s/ 24 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 25 26 27 28 5