(PC) Thompson v. Garcia-Fernandez

[5] 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA [8] 9 TOMMY LEE THOMPSON, Case No. 1:22-cv-01208-BAM (PC) 10 Plaintiff, ORDER DISCHARGING ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE 11 v. DISMISSED FOR FAILURE TO PROSECUTE 12 GARCIA-FERNANDEZ, et al., (ECF No. 45) 13 Defendants. ORDER DENYING PLAINTIFF’S RENEWED MOTION TO APPOINT 14 COUNSEL (ECF No. 46) [15] ORDER GRANTING EXTENSION OF TIME 16 TO RESPOND TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [17] THIRTY (30) DAY DEADLINE [18] 19 Plaintiff Tommy Lee Thompson (“Plaintiff”) is a state prisoner proceeding pro se and in 20 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983 . This action proceeds 21 against Defendants E. Garcia-Fernandez, Bravo, Guerro, C. Castillo, and Gonzales 22 (“Defendants”) for excessive force in violation of the Eighth Amendment. All parties have 23 consented to United States Magistrate Judge jurisdiction. (ECF Nos. 38, 41.) 24 On December 22, 2023, Defendants filed a motion for summary judgment on the ground 25 that Plaintiff failed to exhaust his administrative remedies. (ECF No. 44.) Plaintiff’s opposition 26 was due on or before January 15, 2024. 27 After Plaintiff failed to file an opposition to the motion for summary judgment, on January 28 29, 2024, the Court issued an order for Plaintiff to show cause within twenty-one days why this 1 action should not be dismissed for failure to prosecute. (ECF No. 45.) 2 Currently before the Court is Plaintiff’s response to the order to show cause, filed March 3 12, 2024. (ECF No. 46.) Plaintiff states that he is not legally fit to represent himself, and all time 4 bars and expectations do not apply to him as it is illegal to act or impersonate any type of lawyer, 5 cop, judge, etc. Plaintiff would state all facts submitted are true and he does not have to exhaust 6 state remedies, as the 602 process has been vetoed and abandoned. Plaintiff’s 602s have 7 disappeared. Plaintiff would like a docket of all documents pertaining to this case and he would 8 like to proceed with jury trial or other exhibitions to speed up the process. (Id.) 9 Although Plaintiff’s filing is difficult to understand, it appears Plaintiff is renewing his 10 request for appointment of counsel, attempting to raise a defense to Defendants’ motion for 11 summary judgment regarding Plaintiff’s failure to exhaust his administrative remedies, and 12 requesting copies of the docket in this case. 13 Plaintiff is reminded that he does not have a constitutional right to appointed counsel in 14 this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, [15] 154 F.3d 952 , 954 n.1 (9th Cir. 1998), and the court cannot require an attorney to represent 16 plaintiff pursuant to 28 U.S.C. § 1915 (e)(1). Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, [17] 490 U.S. 296, 298 (1989). As discussed in the Court’s November 7, 2023 order denying 18 Plaintiff’s previous request for appointment of counsel, the Court does not find the required 19 exceptional circumstances. Plaintiff’s assertion that he is not legally fit to represent himself is not 20 sufficient to entitle him to appointment of counsel, and the Court does not find that Plaintiff 21 cannot adequately articulate his claims in this action. Further, even though Plaintiff is 22 representing himself in this action by appearing pro se, this does not mean that Plaintiff is 23 impersonating a lawyer. 24 To the extent Plaintiff is arguing that he is not required to exhaust his state remedies due 25 to problems with the appeals process at his institution, this argument should be presented in 26 opposition to Defendants’ motion for summary judgment. Plaintiff was provided with notice of 27 the requirements for opposing a motion for summary judgment. Woods v. Carey, 684 F.3d 934 28 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1988); Klingele v. Eikenberry, 849 1 F.2d 409 , 411–12 (9th Cir. 1988). (ECF No. 44-1.) 2 If Plaintiff is requesting copies of all documents filed in this case, Plaintiff is informed 3 that the Clerk of the Court does not ordinarily provide free copies of case documents to parties, 4 even those proceeding in forma pauperis. See Hullom v. Kent, 262 F.2d 862, 863 (6th Cir. 1959.) 5 Plaintiff is responsible for maintaining his own records for this proceeding. Plaintiff is informed 6 that the Clerk charges $0.50 per page for copies of documents. See 28 U.S.C. § 1914 (b). Copies 7 of up to twenty pages may be made by the Clerk’s Office at this Court upon written request, 8 prepayment of the copy fees, and submission of a large, self-addressed stamped envelope. 9 Plaintiff should specifically identify which documents he wants copied. 10 Finally, in light of Plaintiff’s response, the Court finds it appropriate to discharge the 11 order to show cause and grant Plaintiff a final opportunity to file an opposition to Defendants’ 12 motion for summary judgment. The Court finds that an extension of thirty days is appropriate 13 under the circumstances, and further finds that Defendants will not be prejudiced by the brief 14 extension granted here. 15 Accordingly, IT IS HEREBY ORDERED as follows: 16 1. The January 29, 2024 order to show cause, (ECF No. 45), is DISCHARGED; 17 2. Plaintiff’s renewed motion to appoint counsel, (ECF No. 46), is DENIED, without 18 prejudice; 19 3. Plaintiff’s opposition to Defendants’ motion for summary judgment is due within thirty 20 (30) days from the date of service of this order; and 21 4. Plaintiff’s failure to file an opposition in compliance with this order will result in 22 dismissal of this action, without prejudice, for failure to prosecute. [23] IT IS SO ORDERED. [24] 25 Dated: March 15, 2024 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE