(PC) Schowachert v. Polley, No. 1:2023cv01579 - Document 11 (E.D. Cal. 2023)
Court Description: ORDER ADOPTING IN FULL 8 Findings and Recommendations to Dismiss Action With Prejudice as Duplicative of Case No. 1:21-cv-01107-ADA-HBK, DENYING 9 Plaintiff's Motion to Appoint Counsel, and DIRECTING the Clerk of Court to Close the Case signed by District Judge Jennifer L. Thurston on 12/19/2023. CASE CLOSED.(Xiong, J.)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 JOHN PAUL FRANK SCHOWACHERT, 11 Plaintiff, 12 v. 13 BILL POLLEY, 14 15 16 17 Defendant. Case No. 1:23-cv-01579-JLT-EPG (PC) ORDER ADOPTING IN FULL FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION WITH PREJUDICE AS DUPLICATIVE OF CASE NO. 1:21-cv01107-ADA-HBK, DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL, AND DIRECTING THE CLERK OF COURT TO CLOSE THE CASE (Doc. 8) John Paul Frank Schowachert is proceeding pro se and in forma pauperis in this civil 18 rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff’s complaint alleges that the Jail 19 Commander at Tuolumne County Jail directed medical staff to alter reports, which helped to 20 cover up a severe assault on the Plaintiff by jail staff. (Doc. 1.) The Court referred the matter to a 21 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 The assigned magistrate issued findings and recommendations that this case be dismissed 23 with prejudice as duplicative of Schowachert v. Polley, No. 1:21-cv-001107-ADA-HBK (E.D. 24 Cal) (Schowachert I). (Doc. 8.) The Court served the Findings and Recommendations on Plaintiff 25 and notified him that any objections were due within 14 days. (Doc. 8 at 5–6). Plaintiff has not 26 filed any objections to the Findings and Recommendations, and the time to do so has lapsed. 27 28 Plaintiff filed a motion for “reasonable sums for legal [representation]” under Title II of Americans with Disabilities Act (ADA). (Doc. 9 at 2.) A plaintiff cannot bring an action under 42 1 1 U.S.C. § 1983 against a state official in his individual capacity to vindicate rights created by 2 Title II of the ADA. Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002). To the extent 3 Plaintiff seeks appointment of counsel, the Court denies his motion. Plaintiff does not have a 4 constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 5 (9th Cir. 1997), withdrawn in part on reh’g en banc, 154 F.3d 952 (9th Cir. 1998), and the Court 6 cannot require an attorney to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. 7 United States District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). Because 8 this action is being closed as duplicative, Plaintiff should make his request for counsel in the still- 9 pending Schowachert I case. 10 According to 28 U.S.C. § 636 (b)(1)(C) and Local Rule 304, this Court conducted a de 11 novo review of this case. Having carefully reviewed the entire action, the Court concludes the 12 Findings and Recommendations to be supported by the record and proper analysis. Thus, the 13 Court ORDERS: 14 1. 15 The Findings and Recommendations issued on November 17, 2023 (Doc. 8) are ADOPTED in full. 16 2. All pending motions are TERMINATED. 17 3. This case is DISMISSED, with prejudice, as duplicative. 18 4. The Clerk of Court is directed to close this case. 19 20 21 IT IS SO ORDERED. Dated: December 19, 2023 22 23 24 25 26 27 28 2
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