Penn v. U.S. Department of Justice

Full title: MARLIN PENN, Plaintiff, v. U.S. DEPARTMENT OF JUSTICE, et al., Defendants

Court: United States District Court, E.D. California

Date published: May 13, 2011

No. CIV S-10-2494 EFB P (E.D. Cal. May. 13, 2011)

Opinion

No. CIV S-10-2494 EFB P.

May 13, 2011

ORDER

EDMUND BRENNAN, Magistrate Judge

Plaintiff, an inmate confined at High Desert State Prison, proceeds in this action pro se and in forma pauperis. On April 28, 2011, the undersigned issued an order denying plaintiff's request for leave to file a second amended complaint, Dckt. No. 18, without prejudice because it was unclear whether plaintiff was seeking to add certain new defendants to challenge the fairness of his trial and the validity of his conviction, which would be impermissible in this action, or whether he was challenging the proposed new defendants' alleged refusal to turn over requested information pursuant to the Freedom of Information Act ("FOIA"). Dckt. No. 24. The court also explained that since FOIA applies to only to "agencies," and does not apply to state governments, it appeared that plaintiff's desired amendment against those defendants would be futile.¹ Id. at 4.

1 The court also noted that plaintiff has also not "shown that he made any proper FOIA requests or California Public Records Act requests to the proposed new defendants." Dckt. No. 24 at 4, n. 1.

The April 28, 2011 order also denied plaintiff's request for appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1), Dckt. No. 16, without prejudice because it could not "conclude that plaintiff's likelihood of success, the complexity of the issues, or the degree of plaintiff's ability to articulate his claims amount to exceptional circumstances justifying the appointment of counsel at this time." Dckt. No. 24 at 5.

Nonetheless, on May 5, 2011, plaintiff re-filed his motion for appointment of counsel and his motion to amend.² Dckt. Nos. 26, 27. For the reasons stated in the April 28, 2011 order, those motions are denied.

2 Although the motions were re-filed on May 5, 2011, the date on plaintiff's current motion for appointment of counsel is March 17, 2011, Dckt. No. 26 at 2, and the date on plaintiff's current motion to amend is April 11, 2011, Dckt. No. 27 at 2. The motion to amend also attaches an "Additional Amendment to Complaint for 2^nd Retaliatory Actions," Dckt. No. 27 at 3, but it appears that amendment relates to a different civil action. See 2:10-cv-2256-GGH.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motion for the appointment of counsel, Dckt. No. 26, is denied without prejudice; and

2. Plaintiff's motion to amend, Dckt. No. 27, is denied without prejudice.

DATED: May 12, 2011.