Phillips v. Janda et al, No. 3:2013cv00567 - Document 58 (S.D. Cal. 2014)
Court Description: ORDER Denying Plaintiff's Renewed 42 Motion for Appointment of Counsel; Granting Plaintiff's 44 46 Motions to Clarify and for Leave to Submit Points and Authorities; and Sua Sponte Granting Plaintiff Extension of Time to Comply with Co urt's Order Requiring Amendment. Plaintiff is further Granted forty-five (45) days leave from the date this Order is entered into the Court's docket in which to file a Fourth Amended Complaint which cures all deficiencies. Signed by Judge Barry Ted Moskowitz on 11/12/14. (All non-registered users served via U.S. Mail Service t/w ECF 39 and 1983 complaint, per this Order)(rlu)
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Phillips v. Janda et al Doc. 58 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 IVORY J. PHILLIPS, CDCR #F-90996, Civil No. Plaintiff, 13 vs. 16 2) DENYING PLAINTIFF’S RENEWED MOTION FOR APPOINTMENT OF COUNSEL [ECF Doc. No. 42] 17 18 19 20 21 GERALD JANDA; RALPH M. DIAZ; DANIEL PARAMO; DR. JEFFREY BEARD; C. LIVSEY; R. LORIOS; C. OGBUEHI; G. PICKETT; E. SIMON; LIEUTENANT R. RONALD DAVIS; SHEILA ANDERSEN; DeLEON; RODRIGUEZ; PEREZ; NAVARO; and JOHN AND SALLY DOES 1-30, AND 3) SUA SPONTE GRANTING PLAINTIFF EXTENSION OF TIME TO COMPLY WITH COURT’S ORDER REQUIRING AMENDMENT 22 23 ORDER: 1) GRANTING PLAINTIFF’S MOTIONS TO CLARIFY AND FOR LEAVE TO SUBMIT POINTS AND AUTHORITIES [ECF Doc. Nos. 44, 46] 14 15 13cv0567 BTM (JLB) Defendants. 24 25 Plaintiff, Ivory Phillips, a state prisoner currently incarcerated at the Richard J. 26 Donovan Correctional Facility (“RJD”) in San Diego, California, is proceeding in pro 27 se and in forma pauperis (“IFP”) in this civil rights action which he first initiated on 28 March 11, 2013, pursuant to 42 U.S.C. § 1983 (ECF Doc. No. 1). 1 13cv0567 BTM (JLB) Dockets.Justia.com 1 I. 2 Background 3 On June 3, 2014, the Court dismissed Plaintiff’s Third Amended Complaint 4 (“TAC”) in its entirety based on Plaintiff’s repeated failures to comply with FED.R.CIV.P. 5 8, and as frivolous, malicious, and for failing to state a claim pursuant to 28 U.S.C. 6 § 1915(e)(2)(B) and § 1915A(b). See June 3, 2014 Order (ECF Doc. No. 39). Because 7 Plaintiff failed to follow the Court’s previous directions regarding necessary amendment 8 of his Eighth Amendment, free exercise, and access to courts claims, the Court denied 9 further leave to amend those claims as futile. Id. at 14. To the extent Plaintiff’s TAC 10 alleged racial discrimination and conspiracy claims the Court had previously dismissed 11 as frivolous, the Court found Plaintiff’s attempts to resurrect those claims both frivolous 12 and malicious, and again denied him leave to amend. Id. at 14-15. 13 However, a careful reading of Plaintiff’s TAC included what appeared to be a new 14 claim of retaliation, arising in July 2013, and not previously alleged in any of Plaintiff’s 15 prior pleadings. See TAC (ECF Doc. No. 20) at 18-23. Therefore, while the Court found 16 Plaintiff failed to allege facts sufficient to support this newly-alleged retaliation claim, 17 it granted him leave “to amend this claim only, and against Defendants Pickett, Espinoza, 18 Perez, Rodriguez, Navaro, and Ramirez only.” Id. at 15 (emphasis original). 19 The Court further directed the Clerk of Court to provide Plaintiff with a copy of 20 its form § 1983 civil rights complaint for his use and convenience, and cautioned that his 21 Fourth Amendment Complaint must be complete by itself, comply with FED.R.CIV.P. 8, 22 and “add no additional Defendants or causes of action.” Id. at 16. Finally, the Court 23 made clear that “should [Plaintiff] fail to file a Fourth Amended Complaint within the 24 time provided, or file a Fourth Amended Complaint that fail[ed] to state a retaliation 25 claim or otherwise comply with [its] Order,” it would “enter a final Order of dismissal 26 of the entire action without prejudice as frivolous, malicious, and for failing to state a 27 claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 § 1915A(b).” Id. at 17. 2 13cv0567 BTM (JLB) 1 II. 2 Plaintiff’s Responses 3 Plaintiff failed to file a Fourth Amended Complaint within the time provided. 4 Instead, he has since submitted several duplicative motions, miscellaneous requests and 5 supplemental documents which wholly fail to acknowledge the existence of, or 6 demonstrate any attempt to comply with, the Court’s June 3, 2014 Order. 7 The first, which Plaintiff captions as “Class Action Motion for Leave: Notice of 8 Motion: Motion to Submit Points and Authorities (“P&A’s”) in Support of, Motion to 9 Appoint Counsel and or Clerical Support and Memorandum of P&As,” the Court 10 construes as a renewed Motion for Appointment of Counsel (ECF Doc. No. 42). Plaintiff 11 has also filed an “Amended” Motion for Leave to Submit P&As (ECF Doc. No. 46), in 12 which he appears to seek permission to supplement his previous Motion for Appointment 13 of Counsel, as well as at least one supplemental document in support these Motions 14 (ECF Doc. Nos. 48). 15 In addition, Plaintiff has filed a “Class Action Motion for Leave: Notice of 16 Motion; and Request for Clarification of Order on Third Amended Complaint” (ECF 17 Doc. No. 44), as well as two supplemental documents in support and/or to amend this 18 Motion (ECF Doc. Nos. 51, 55). In these submissions, Plaintiff expresses confusion as 19 the status of his case, and claims he did not receive any prior Order of dismissal. See 20 ECF Doc. No. 44 at 2. Plaintiff asks the Court to clarify “which version of [his] 21 Complaint is up for screening,” and how much time he has to “amend it for clarity and 22 compliance.” Id. at 4. 23 III. 24 Renewed Motion for Appointment of Counsel 25 Plaintiff again seeks the appointment of an attorney “and/or clerical support” 26 because his case is a “complex” “multi-jurisdictional” “class action,” consisting of 27 “approximately six (6) causes.” See Pl.’s Mot. (ECF Doc. No. 42) at 8. 28 /// 3 13cv0567 BTM (JLB) 1 As the Court has previously noted, the Constitution provides no right to 2 appointment of counsel in a civil case. See Lassiter v. Dept. of Social Services, 452 U.S. 3 18, 25 (1981). And, while 28 U.S.C. § 1915(e)(1) provides district courts with discretion 4 to appoint counsel for indigent persons, the exercise of this discretion is limited to cases 5 which present “exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th 6 Cir. 1991). “A finding of exceptional circumstances requires an evaluation of both the 7 ‘likelihood of success on the merits and the ability of the plaintiff to articulate his claims 8 pro se in light of the complexity of the legal issues involved.’ Neither of these issues is 9 dispositive and both must be viewed together before reaching a decision.” Id. (quoting 10 Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 11 The Court denied Plaintiff’s previous motion for appointment of counsel because 12 he failed to show any exceptional circumstances required the exercise of its discretion 13 under § 1915(e)(1). See June 3, 2014 Order at 4-5 (citing LaMere v. Risley, 827 F.2d 14 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017). Nothing offered in support of his 15 current Motion or any of its supplements presents the Court with any justification to 16 change that conclusion. And while Plaintiff continues to argue that appointment of 17 counsel is warranted due to the complexity of his case, and his limited access to adequate 18 law library facilities, see Pl.’s Mot. (ECF Doc. No. 42) at 8, his renewed request still fails 19 to show either that the sole retaliation claim he has been granted leave to amend is 20 unduly complex, or that he is unable to articulate the factual basis for that claim, 21 especially in light of the Court’s June 3, 2014 Order, which clearly delineated the 22 straightforward legal standards for alleging such a claim. See June 3, 2014 Order at 13- 23 14; see also Wilborn, 789 F.2d at 1331 (“If all that was required to establish successfully 24 the complexity of the relevant issues [for purposes of appointing counsel under § 1915] 25 was a demonstration of the need for development of further facts, practically all cases 26 would involve complex legal issues.”). For these reasons, the Court again DENIES 27 Plaintiff’s Motion for Appointment of Counsel without prejudice (ECF Doc. No. 42). 28 /// 4 13cv0567 BTM (JLB) 1 IV. 2 Motions to Clarify and for Leave to Submit P&As 3 In his Motion to Clarify (ECF Doc. No. 44), his Motion for Leave to Submit P&As 4 (ECF Doc. No. 46), and in his supplemental filings offered in support (ECF Doc. Nos. 5 48, 51, 53, 55), Plaintiff expresses confusion as to the status of his case, and claims he 6 did not receive any previous Order dismissing or rejecting his claims. See Pl.’s Mot. 7 (ECF Doc. No. 44) at 2-3. And while these documents comprise pages of case citations 8 and mostly irrelevant legal jargon, they also contain random and disjointed factual 9 allegations related to the current conditions of Plaintiff’s confinement at RJD. See, e.g., 10 Doc. No. 46 at 16-17. None of them can be fairly classified as an attempt to file a proper 11 Fourth Amended Complaint, however. 12 “confidential/legal mail” “pre-ripped open before arrival,” that he has not received mail 13 “on numerous occasions,” and he asks the Court to clarify “which version of [his] 14 Complaint is up for screening,” and provide him a “time-frame” in which to amend. Id. 15 at 3. Instead, Plaintiff alleges he has had 16 While nothing in the Court’s docket indicates its June 3, 2014 Order, or any other 17 Order issued in this case was ever returned by the U.S. Post Office as undeliverable, the 18 Notice of Electronic Filing attached to the June 3, 2014 Order demonstrates that it was 19 “served via U.S. Mail Service” along with a blank civil rights complaint on Plaintiff at 20 the following address: Ivory J. Phillips, F-90996, RJ Donovan Correctional Facility, PO 21 Box 799002, San Diego, CA 92179-9002 on 6/3/14 (ECF Doc. No. 39). Plaintiff has not 22 been transferred from RJD or filed any Notice of Change of Address since he first 23 initiated this case in March 2013, and it has long been generally presumed that mail 24 properly addressed to a party at his last known address has been received. See Anderson 25 v. U.S., 966 F.2d 487, 491-92 (9th Cir. 1992) (“Under the common law mailbox rule, 26 proper and timely mailing of a document raises a rebuttable presumption that it is 27 received by the addressee.”) (citing Rosenthal v. Walker, 111 U.S. 185, 193-94 (1884)). 28 Nevertheless, the Court will take Plaintiff at his word, and in an abundance of caution 5 13cv0567 BTM (JLB) 1 in light of his pro se status, assume that he did not receive either a copy of the Court’s 2 June 3, 2014 Order, or a blank copy of the Court’s form § 1983 Complaint for him to use 3 to amend. See Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 4 1988) (noting that where a plaintiff appears in propria persona in a civil rights case, the 5 Court must construe the pleadings liberally and afford plaintiff any benefit of the doubt). 6 For these reasons, the Court will GRANT Plaintiff’s Motions to Clarify and for 7 Leave to Submit P&As (ECF Doc. Nos. 44, 46), and further GRANT him additional time 8 and one final opportunity in which to file a Fourth Amended Complaint which complies 9 with the Court’s June 3, 2014 Order. 10 V. 11 Conclusion and Order 12 Good cause appearing, IT IS HEREBY ORDERED that: 13 1) 14 15 16 17 Plaintiff’s Renewed Motion for Appointment of Counsel (ECF Doc. No. 42) is DENIED. 2) Plaintiff’s Motions to Clarify and for Leave to Submit Points & Authorities (ECF Doc. Nos. 44, 46) are GRANTED. 3) Plaintiff is further GRANTED forty-five (45) days leave from the date this 18 Order is entered into the Court’s docket in which to file a Fourth Amended Complaint 19 which cures all deficiencies of pleading described in the Court’s June 3, 2014 Order 20 (ECF Doc. No. 39) as to his retaliation claims against Defendants Pickett, Espinoza, 21 Perez, Rodriguez, Navaro and Rodriguez only. 22 4) The Clerk of Court is DIRECTED to provide Plaintiff another copy of the 23 Court’s June 3, 2014 Order (ECF Doc. No. 39), as well as the Court’s form § 1983 civil 24 rights complaint for his use in amending. Plaintiff must title his pleading as his Fourth 25 Amended Complaint, include Civil Case No. 13cv0567 BTM (JLB) in its caption, 26 complete it without reference to any of his previous pleadings, add no additional 27 Defendants or causes of action, and comply with FED.R.CIV.P. 8, S.D. CAL. CIVLR 8.2 28 (providing that civil rights actions filed by prisoners must be submitted on the form 6 13cv0567 BTM (JLB) 1 supplied by the court, must be signed by the plaintiff, and may not include more than 2 fifteen (15) attached additional pages), and S.D. CAL. CIVLR 15.1. 3 5) Finally, Plaintiff is cautioned that should he fail to file a Fourth Amended 4 Complaint within the time provided, or file a Fourth Amended Complaint that fails to 5 state a retaliation claim or otherwise comply with the Court’s June 3, 2014 Order, the 6 Court will enter a final Order of dismissal of the entire action without prejudice and 7 without any further leave to amend as frivolous, malicious, and for failing to state a claim 8 upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). 9 10 11 12 DATED: November 12, 2014 BARRY TED MOSKOWITZ, Chief Judge United States District Court 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 13cv0567 BTM (JLB)
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