Green v. Ryan et al

Filing 186

ORDERED that Plaintiff's Motion to Appoint Counsel (Doc. 172 ), Motion to Appoint Counsel (Doc. 173 ), Motion Requesting Leave of Court to Reopen Discovery to New Evidence (Doc. 174 ), Motion Requesting Leave of Court Ordering Centurion to Compel (Doc. 175 ), and Motion to Compel (Doc. 183 ) are denied. (See attached Order for complete details) Signed by Judge Rosemary Marquez on 9/3/2021. (MCO)

Case 4:18-cv-00068-RM Document 186 Filed 09/07/21 Page 1 of 5

1

WO

2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE DISTRICT OF ARIZONA

10
11

Alfred Green,

12
13
14

No. CV-18-00068-TUC-RM
Plaintiff,

ORDER

v.
Corizon Health Services, et al.,

15

Defendants.

16
17

Pending before the Court are Plaintiff’s Motion to Appoint Counsel (Doc. 172),

18

Motion to Appoint Counsel (Doc. 173), Motion Requesting Leave of Court to Reopen

19

Discovery to New Evidence (Doc. 174), Motion Requesting Leave of Court Ordering

20

Centurion to Compel (Doc. 175), and Motion to Compel (Doc. 183). Defendants

21

responded in opposition to the Motion Requesting Leave of Court to Reopen Discovery

22

to New Evidence. (Docs. 177, 178.) Defendant Shinn responded in opposition to the

23

Motion Requesting Leave of Court Ordering Centurion to Compel and the Motion for

24

Leave to File Motion to Compel. (Doc. 179.) The Motions will be denied.

25

I.

26

Briefing on both parties’ Motions for Summary Judgment was completed on May

27

20, 2021. (See Doc. 167.) The Court has previously denied several of Plaintiff’s motions

28

requesting appointment of counsel in this case. (See Docs. 41, 91, 94, 99, 141.) In its

Motions to Appoint Counsel (Docs. 172, 173)

Case 4:18-cv-00068-RM Document 186 Filed 09/07/21 Page 2 of 5

1

most recent Order denying Plaintiff’s requests for counsel, the Court stated that it would

2

entertain a motion for appointment of counsel following resolution of the dispositive

3

motions. (Doc. 141 at 3.)

4

In his First Motion to Appoint Counsel, Plaintiff requests appointment of counsel

5

for the same reasons previously set forth in his Motions to Supplement (Docs. 156-161),

6

namely, that he recently saw a therapist for treatment of nerve and/or musculoskeletal

7

pain and now seeks to introduce evidence relating to the therapeutic treatment he

8

received. (Doc. 172.) He argues that a lawyer would have more success at obtaining and

9

introducing this new evidence than he would. (Id.) The Court previously denied

10

Plaintiff’s Motions to Supplement because Plaintiff had not provided good cause for the

11

requested supplemental briefing after the expiration of the relevant dispositive motion

12

deadlines. (Doc. 167.) In his second Motion to Appoint Counsel, Plaintiff asks the Court

13

to appoint Benjamin Taylor, whom he alleges is an attorney based in Phoenix, Arizona,

14

to represent him in this matter. (Doc. 173.)

15

There is no constitutional right to the appointment of counsel in a civil case. See

16

Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982). In

17

proceedings in forma pauperis, the court may request an attorney to represent any person

18

unable to afford one. 28 U.S.C. § 1915(e)(1). Appointment of counsel under 28 U.S.C. §

19

1915(e)(1) is required only when “exceptional circumstances” are present. Terrell v.

20

Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A determination with respect to exceptional

21

circumstances requires an evaluation of the likelihood of success on the merits as well as

22

the ability of the plaintiff to articulate his claims pro se in light of the complexity of the

23

legal issue involved. Id. “Neither of these factors is dispositive and both must be viewed

24

together before reaching a decision.” Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328,

25

1331 (9th Cir. 1986)).

26

Having denied Plaintiff’s Motions to Supplement and having considered the

27

factors for appointment of counsel, the Court finds no basis upon which to grant the

28

requests for appointment of counsel at this time. Furthermore, the Court will not grant

-2-

Case 4:18-cv-00068-RM Document 186 Filed 09/07/21 Page 3 of 5

1

Plaintiff’s request that it appoint Benjamin Taylor as his attorney without additional

2

information about Mr. Taylor’s willingness and ability to represent Plaintiff in this

3

litigation. If Mr. Taylor has agreed to represent Plaintiff in this action, he may file a

4

Notice of Appearance. See LRCiv 83.3(a).

5

II.

Motion to Reopen Discovery (Doc. 174)

6

In his Motion to Reopen Discovery (Doc. 174), Plaintiff seeks to reopen discovery

7

so that he may submit new evidence regarding therapeutic treatment he received in

8

March and April of 2021 for his injuries. Plaintiff avers that the therapist’s medical

9

reports contain “pertinent information” which would “prove that [he] has permanent

10

nerve damage that has gone untreated.” (Id.) Defendants oppose the Motion because (1)

11

Plaintiff has not shown good cause to extend deadlines that have already expired, (2)

12

dispositive motions are currently pending before the Court, and (3) the Court previously

13

denied Plaintiff’s requests to supplement the summary judgment briefing with new

14

evidence. (Doc. 177, see also Doc. 167.)

15

Plaintiff has presented no compelling reasons for reopening discovery after

16

completion of briefing on dispositive motions. See Johnson v. Mammoth Recreations,

17

Inc., 975 F.2d 604, 609 (9th Cir. 1992) (party seeking to modify or extend pretrial

18

deadlines must show good cause for doing so). Furthermore, the Court has already denied

19

identical requests and Plaintiff has presented no new facts or circumstances that would

20

change the Court’s analysis in its previous Order (Doc. 167). Accordingly, the Motion

21

will be denied.

22

III.

23

In his Motion Requesting Leave of Court Ordering Centurion to Compel, Plaintiff

24

seeks to have the Court order Centurion to produce records from his therapy visits. (Doc.

25

175.) Plaintiff contends that he requested these records but has not received them and that

26

they contain information pertinent to his medical conditions. (Id.) In his Motion to

27

Compel to Release Plaintiff’s Medical Therapist Reports, Plaintiff repeats his request for

28

production of the records from his therapy visits. (Doc. 183) He states that his therapist

Motions to Compel (Docs. 175, 183)

-3-

Case 4:18-cv-00068-RM Document 186 Filed 09/07/21 Page 4 of 5

1

stopped providing treatment after he experienced pain from the treatment and that he

2

needs to know why treatment was stopped. (Id.) He further states that he submitted a

3

Health Needs Request Form, as well as three separate medical release forms, requesting

4

copies of the therapy records and has not received them. (Id.)

5

Defendant Shinn responded in opposition to the Motions. (Doc. 181.) In response,

6

Defendant Shinn argues that (1) Centurion is not a party in this case and there is no

7

indication or evidence that a subpoena or other request to Centurion for the records has

8

been made; (2) Plaintiff has access to his own medical records and it is not clear that he

9

has followed the procedure for obtaining those records; and (3) the deadline for

10

discovery-related motions has passed and summary judgment briefing is pending, and the

11

Court has already rejected Plaintiff’s similar or identical discovery requests on that basis.

12

(Id.)

13

Centurion is not a party in this case and Plaintiff has provided no evidence of a

14

subpoena or other record request to Centurion that has gone unanswered. Furthermore,

15

the discovery deadlines in this case passed months ago and summary judgment briefing is

16

currently pending before the Court. For these reasons as well as the reasons set forth

17

above regarding Plaintiff’s Motion to Reopen Discovery, the Motions to Compel will be

18

denied.

19

Accordingly,

20

....

21

....

22

....

23

....

24

....

25

....

26

....

27

....

28

....

-4-

Case 4:18-cv-00068-RM Document 186 Filed 09/07/21 Page 5 of 5

1

IT IS ORDERED that Plaintiff’s Motion to Appoint Counsel (Doc. 172), Motion

2

to Appoint Counsel (Doc. 173), Motion Requesting Leave of Court to Reopen Discovery

3

to New Evidence (Doc. 174), Motion Requesting Leave of Court Ordering Centurion to

4

Compel (Doc. 175), and Motion to Compel (Doc. 183) are denied.

5

Dated this 3rd day of September, 2021.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-5-