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Kyle Avery v. Marc Elia

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


January 17, 2013

KYLE AVERY, PLAINTIFF,
v.
MARC ELIA, ET AL., DEFENDANTS.

ORDER

Plaintiff is a state prisoner proceeding pro se with a civil action pursuant to 42 U.S.C. § 1983. On March 19, 2012, the court determined that service of plaintiff's original complaint was appropriate on defendants Marc Elia, T. Virga, Lt. Konrade, Captain R. Carter and Chaplain Bill Goekee. (See Dkt. No. 4 at p. 2.) These defendants subsequently filed a motion to dismiss. (See Dkt. No. 19.) Thereafter, plaintiff filed a request for an extension of time to file an amended complaint. (See Dkt. No. 20.) On October 17, 2012, defendants' motion to dismiss was denied without prejudice and plaintiff was given thirty days to file an amended complaint. (See Dkt. No. 22.)

On November 1, 2012, plaintiff filed a motion for designation of class action, motion to appoint counsel and request for class status. (Dkt. No. 23.) Attached to plaintiff's motion is his amended complaint. (See id. at p. 2-41.)

Plaintiff's motion for a designation of class action will be denied. It is well established that a pro se plaintiff may not bring a class action on behalf of other inmates. See Simon v. Hartford Life, Inc. 546 F.3d 661, 664-65 (9th Cir. 2008) (citations omitted); Oxendine v. Williams, 509 F.2d 1405 (4th Cir. 1975).

Plaintiff also requests the appointment of counsel. The United States Supreme Court has ruled that district courts lack authority to require counsel to represent indigent prisoners in § 1983 cases. See Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). In the present case, the court does not find the required exceptional circumstances. Plaintiff's motion for the appointment of counsel will therefore be denied.

Plaintiff's amended complaint states that he is no longer bringing claims against defendant Bill Goekee. (See Dkt. No. 23 at p. 7.) Thus, Bill Goekee is no longer a defendant in this case and he will be dismissed as a defendant in light of plaintiff's representations as stated in his amended complaint.

The amended complaint states a cognizable claim for relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). If the allegations of the amended complaint are proven, plaintiff has a reasonable opportunity to prevail on the merits of this action. Accordingly, defendants Marc Elia, T. Virga, Lt. Konrade, Captain R. Carter will be ordered to respond to the amended complaint.

The amended complaint also names three new potential defendants; Sgt. Jones, Correctional Officer Huggins and the CDCR Secretary.*fn1 Service of the amended complaint is appropriate on these three defendants.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motion for designation of class action and motion to appoint counsel (Dkt. No. 23.) are DENIED.

2. The Clerk shall docket pages 2-41 of Dkt. No. 23 as plaintiff's amended complaint.

3. Defendants Elia, Virga, Konrade and Carter shall file a response to the amended complaint which is attached to Dkt. No. 23 within thirty (30) days of the date of this order.

4. Defendant Bill Goekee is dismissed as a defendant.

5. Service of the amended complaint (See Dkt. No. 23 at p. 2-41) is appropriate on Sgt. Jones, Correctional Officer Huggins and Dr. Jeffrey Beard.

6. The Clerk of the Court shall send plaintiff 3 USM-285 forms, one summons, an instruction sheet and a copy of the amended complaint filed on November 1, 2012 which can be found at pages 2-41 of Dkt. No. 23.

7. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit the following documents to the court:

a. The completed Notice of Submission of Documents;

b. One completed summons

c. One completed USM-285 form for each defendant listed in number 3 above; and

d. four copies of the amended complaint filed November 1, 2012.

8. Plaintiff need not attempt service on the three additional defendants listed in number 3 above and need not request waiver of service. Upon receipt of the above-described documents, the court will direct the United States Marshal to serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 without payment of costs.

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA KYLE AVERY,

Plaintiff, No. 2: 11-cv-3341 JAM JFM (PC) v. MARC ELIA, et al., NOTICE OF SUBMISSION OF DOCUMENTS Defendants.

Plaintiff hereby submits the following documents in compliance with the court';s order filed completed summons form _____ completed USM-285 forms _____ copies of the amended complaint

DATED:

Plaintiff


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