1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 G. DANIEL WALKER, Case No. 19-cv-01430-SI

8 Plaintiff, ORDER 9 v. Re: Dkt. Nos. 19, 20 10 W. L. MUNIZ, et al., 11 Defendants.

12 13 On September 24, 2019, the federal claims in this action were dismissed and this removed action was remanded to the San Francisco 14 County Superior Court so that plaintiff could pursue his state law claims 15 there. 16 On October 17, 2019, plaintiff filed a “motion to set aside” the 17 September 24, 2019, order and a “notice of total disability and unable to 18 plead requesting ADA accommodations.” Docket Nos. 19 and 20. 19 Plaintiff contends that prison officials at the California Medical Facility in 20 Vacaville and at Corcoran State Prison (both located in the Eastern District 21 of California) are not providing adequate accommodation for his serious 22 vision problems and the failure to do so has impeded his ability to prepare 23 the amended complaint that this court ordered in June 2019. Although it is 24 doubtful this court has jurisdiction to entertain any request in this action 25 that has been remanded to the superior court, the court will assume for 26 present purposes that it does have jurisdiction, given that plaintiff is 27 seeking an order undoing an earlier order from this court. 1 The motion to set aside the September 24, 2019, order is DENIED. 2 Docket No. 19. The federal claims properly were dismissed because the 3 original complaint did not state a federal claim upon which relief could be 4 granted and plaintiff did not file an amended complaint to cure the many 5 deficiencies identified in the order of dismissal with leave to amend, 6 although he had more than three months to prepare that amended 7 complaint. Plaintiff states that he was working on his amended complaint, 8 but his exhibit suggests that only the first page of the amended complaint 9 has been completed in the many months he had to prepare the document, 10 Docket No. 18-1 at 15, and elsewhere he reports that he is unable to plead, 11 see Docket No. 19 at 1. During the time when he could have been preparing 12 his amended complaint, plaintiff devoted substantial time to other efforts, 13 e.g., filing typed documents in other cases in other courts, see Docket No. 14 18-1 at 16-18, and preparing lengthy typed memoranda to complain to 15 prison officials about his care, id. at 39-40, 52-56. At least part of 16 plaintiff’s problem appears to be that he is trying to do too many different 17 things with his limited resources, rather than concentrate his efforts on this 18 litigation. 19 Plaintiff’s request for an order compelling prison officials to provide 20 accommodations for him is DENIED. Docket No. 20. Plaintiff essentially 21 concedes that he cannot prepare an amended complaint and litigate this 22 action. Without a pleading that states a claim, the court would not grant 23 interim relief such as ordering prison officials in the Eastern District of 24 California to provide ADA accommodations or appointing counsel. One 25 criteria for the issuance of a preliminary injunction is that the plaintiff has 26 demonstrated a likelihood of success on the merits. see Winter v. Natural 27 Res. Defense Council, Inc.,

(2008). Another requirement 1 || pled in the complaint because the “court’s equitable power lies only over 2 || the merits of the case or controversy before it.” Pacific Radiation 3 || Oncology, LLC v. Queen’s Med. Ctr.,

(9th Cir. 2015); 4 || see, e.g.,

(district court properly denied plaintiff's request for 5 || an injunction to prevent HIPAA violation, where plaintiff had not asserted 6 || aclaim for a HIPAA violation). A primary consideration for appointment 7 || of counsel is the likelihood of success on the merits. See Wilborn □□□ 8 || Escalderon,

(9th Cir. 1986). But the court cannot 9 || make those sorts of determinations without an amended complaint, which 10 || plaintiff has not provided and states he cannot provide. Moreover, the 11 |} ADA accommodation problems are occurring at the California Medical 12 || Facility and Corcoran State Prison, both of which are located in the Eastern 5 13 || District of California. See Docket No. 18 at 2-3. Docket No. 18-1. If S 14 || plaintiff believes that the dismissal of his federal claims is due to conduct 3 15 || of prison officials at the California Medical Facility or Corcoran State 16 || Prison, he can file a new action against those officials asserting a claim for 5 17 || denial of access to the courts or an ADA claim or both. The proper venue 18 || for such an action would be the United States District Court for the Eastern 19 || District of California rather than the Northern District of California. 20 The clerk will send a copy of this order to the San Francisco County 21 || Superior Court for filing in Case Number CGC 17-560446. The clerk 22 || should highlight this paragraph so the receiving court understands the case 23 || in which the document is to be filed. 4 IT IS SO ORDERED. || Dated: October 21, 2019 Site tee 26 eee eS SUSAN ILLSTON, 27 United States District Judge 28