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Phillips v. Janda

United States District Court, S.D. California

November 12, 2014

IVORY J. PHILLIPS, CDCR #F-90996, Plaintiff,
v.
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, Defendants.

ORDER:1) GRANTING PLAINTIFF'S MOTIONS TO CLARIFY AND FOR LEAVE TO SUBMIT POINTS AND AUTHORITIES [ECF Doc. Nos. 44, 46] 2) DENYING PLAINTIFF'S RENEWED MOTION FOR APPOINTMENT OF COUNSEL [ECF Doc. No. 42] AND 3) SUA SPONTE GRANTING PLAINTIFF EXTENSION OF TIME TO COMPLY WITH COURT'S ORDER REQUIRING AMENDMENT

BARRY TED MOSKOWITZ, Chief District Judge.

Plaintiff, Ivory Phillips, a state prisoner currently incarcerated at the Richard J. Donovan Correctional Facility ("RJD") in San Diego, California, is proceeding in pro se and in forma pauperis ("IFP") in this civil rights action which he first initiated on March 11, 2013, pursuant to 42 U.S.C. § 1983 (ECF Doc. No. 1).

I.

Background

On June 3, 2014, the Court dismissed Plaintiff's Third Amended Complaint ("TAC") in its entirety based on Plaintiff's repeated failures to comply with FED.R.CIV.P. 8, and as frivolous, malicious, and for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). See June 3, 2014 Order (ECF Doc. No. 39). Because Plaintiff failed to follow the Court's previous directions regarding necessary amendment of his Eighth Amendment, free exercise, and access to courts claims, the Court denied further leave to amend those claims as futile. Id. at 14. To the extent Plaintiff's TAC alleged racial discrimination and conspiracy claims the Court had previously dismissed as frivolous, the Court found Plaintiff's attempts to resurrect those claims both frivolous and malicious, and again denied him leave to amend. Id. at 14-15.

However, a careful reading of Plaintiff's TAC included what appeared to be a new claim of retaliation, arising in July 2013, and not previously alleged in any of Plaintiff's prior pleadings. See TAC (ECF Doc. No. 20) at 18-23. Therefore, while the Court found Plaintiff failed to allege facts sufficient to support this newly-alleged retaliation claim, it granted him leave "to amend this claim only, and against Defendants Pickett, Espinoza, Perez, Rodriguez, Navaro, and Ramirez only." Id. at 15 (emphasis original).

The Court further directed the Clerk of Court to provide Plaintiff with a copy of its form § 1983 civil rights complaint for his use and convenience, and cautioned that his Fourth Amendment Complaint must be complete by itself, comply with FED.R.CIV.P. 8, and "add no additional Defendants or causes of action." Id. at 16. Finally, the Court made clear that "should [Plaintiff] fail to file a Fourth Amended Complaint within the time provided, or file a Fourth Amended Complaint that fail[ed] to state a retaliation claim or otherwise comply with [its] Order, " it would "enter a final Order of dismissal of the entire action without prejudice as frivolous, malicious, and for failing to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)." Id. at 17.

II.

Plaintiff's Responses

Plaintiff failed to file a Fourth Amended Complaint within the time provided. Instead, he has since submitted several duplicative motions, miscellaneous requests and supplemental documents which wholly fail to acknowledge the existence of, or demonstrate any attempt to comply with, the Court's June 3, 2014 Order.

The first, which Plaintiff captions as "Class Action Motion for Leave: Notice of Motion: Motion to Submit Points and Authorities ("P&A's") in Support of, Motion to Appoint Counsel and or Clerical Support and Memorandum of P&As, " the Court construes as a renewed Motion for Appointment of Counsel (ECF Doc. No. 42). Plaintiff has also filed an "Amended" Motion for Leave to Submit P&As (ECF Doc. No. 46), in which he appears to seek permission to supplement his previous Motion for Appointment of Counsel, as well as at least one supplemental document in support these Motions (ECF Doc. Nos. 48).

In addition, Plaintiff has filed a "Class Action Motion for Leave: Notice of Motion; and Request for Clarification of Order on Third Amended Complaint" (ECF Doc. No. 44), as well as two supplemental documents in support and/or to amend this Motion (ECF Doc. Nos. 51, 55). In these submissions, Plaintiff expresses confusion as the status of his case, and claims he did not receive any prior Order of dismissal. See ECF Doc. No. 44 at 2. Plaintiff asks the Court to clarify "which version of [his] Complaint is up for screening, " and how much time he has to "amend it for clarity and compliance." Id. at 4.

III.

Renewed Motion for Appointment ...


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