Calloway v. Kelley et al

Filing 52

ORDER DENYING Plaintiff's 51 Motion to Set Aside Discovery Orders as Premature signed by Magistrate Judge Stanley A. Boone on 3/10/2014. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMISI JERMAINE CALLOWAY,

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Plaintiff,

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v.
G. KELLEY, et al.,

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Defendants.

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ORDER DENYING PLAINTIFF’S MOTION TO
SET ASIDE DISCOVERY ORDERS AS
PREMATURE
[ECF No. 51]

action pursuant to 42 U.S.C. § 1983.
Now pending before the Court is Plaintiff’s motion seeking to set aside the discovery order as

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Case No.: 1:11-cv-01090-SAB (PC)

Plaintiff Jamisi Jermaine Calloway is appearing pro se and in forma pauperis in this civil rights

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premature, filed March 7, 2014.
This action is proceeding on Plaintiff’s first amended complaint filed May 16, 2013, against

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Defendants M. Bostanjian, Melissa Fritz, G. Kelley, Peter Mazuk, V. Schomer, Syed, Marc Talisman,

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C. Trinh, and Jeffrey Wang for retaliation in violation of the First Amendment.
On February 20, 2014, Defendants G. Kelley and Jeffrey Wang filed an answer to the first

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amended complaint. (ECF No. 34.)

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On February 24, 2014, the Court issued a discovery and scheduling order. (ECF No. 37.)

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On February 25, 2014, Defendants M. Bostanjian and Syed filed an answer to the first

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amended complaint. (ECF No. 39.) On February 26, 2014, the Court issued an order extending the

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discovery and scheduling order of February 24, 2014, to these Defendants. (ECF No. 41.)
On February 27, 2014, Defendants Peter Mazuk and V. Schomer filed an answer to the first

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amended complaint. (ECF No. 45.) On March 5, 2014, the Court issued an order extending the

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discovery and scheduling order of February 24, 2014, to these Defendants. (ECF No. 49.)

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I.

Motion to Set Aside Discovery Order

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Plaintiff seeks to set aside the discovery order as premature because he is not capable of

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prosecuting this action and he wishes to amend the complaint to add an Eighth Amendment claim of

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deliberate indifference. Plaintiff contends it is premature to begin discovery in this case when all the

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defendants have not yet made an appearance in this action. Plaintiff further contends he “will get

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confused going back and forth with the same medical issues and claims arriving from the same

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incidents.”
As Plaintiff was advised in the Court’s July 1, 2011, “[a]fter an answer is filed, the court will

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issue an order opening discovery and setting the deadlines for completing discovery, amending the

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pleadings, and filing pre-trial dispositive motions.” (ECF No. 3, at 4:21-23.) Because at least one of

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defendants has filed an answer in this action, the discovery phase of the action was initiated. It is

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immaterial that not all of the defendants have been served and filed an answer to the complaint, as the

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Court will extend and/or re-set the applicable deadlines as certain defendants file an appearance in the

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action.
Furthermore, Plaintiff’s claim that he seeks to set aside the discovery phase of the action

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because he intends to amend the complaint to proceed on a claim of deliberate indifference to his

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serious medical need, any such claim was dismissed from the action, at Plaintiff’s request. (ECF No.

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13.)
In the Court’s August 23, 2013, order, Plaintiff was advised that he failed to state a cognizable

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claim for deliberate indifference to a serious medical need against any of the named defendants, and

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Plaintiff was given the option of proceeding on the retaliation claim only or filing a second amended

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complaint. (ECF No. 13.)
On September 5, 2013, Plaintiff notified the Court of his intent to proceed on the retaliation

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claim only. (ECF No. 15.) Thereafter, Plaintiff completed and returned the service or process

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documents, and the United States Marshal was directed to serve the defendants on December 13, 2013.

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(ECF No. 31.) Accordingly, this action is proceeding on a claim of retaliation only, and there is no

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basis to stay discovery pending a claim of deliberate indifference to a serious medical need.

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II.

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Plaintiff contends it would be unfair and biased to proceed with this action without the benefit

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Motion for Appointment of Counsel

of pro bono counsel to assist him with the litigation.

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As Plaintiff was previously advised in the Court’s May 23, 2013, order denying his request for

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appointment of counsel, Plaintiff does not have a constitutional right to the appointment of counsel in

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this action. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009); Storseth v. Spellman, 654 F.2d 1349,

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1353 (9th Cir. 1981). The Court may request the voluntary assistance of counsel pursuant to 28

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U.S.C. § 1915(e)(1), but it will do so only if exceptional circumstances exist. Palmer, 560 F.3d at 970;

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Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). In making this determination, the Court

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must evaluate the likelihood of success on the merits and the ability of Plaintiff to articulate his claims

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pro se in light of the complexity of the legal issues involved. Palmer at 970 (citation and quotation

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marks omitted); Wilborn, 789 F.2d at 1331. Neither consideration is dispositive and they must be

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viewed together. Palmer 560 F.3d at 970 (citation and quotation marks omitted); Wilborn, 789 F.2d at

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1331.

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As with Plaintiff’s prior motion, the Court does not find the required exceptional circumstances

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exist at this time. Even if it is assumed that Plaintiff is not well versed in the law and that he has made

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serious allegations which, if proved, would entitle him to relief, his case is not exceptional. The Court

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is faced with similar cases almost daily. Thus, Plaintiff’s motion for appointment of counsel must be

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denied.

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Based on the foregoing,

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IT IS HEREBY ORDERED that Plaintiff’s motion requesting to set aside the discovery order

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as premature is DENIED.

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IT IS SO ORDERED.
Dated:

March 10, 2014
UNITED STATES MAGISTRATE JUDGE

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