Caputo v. Kern County Sheriff's Office

Filing 33

ORDER DENYING Motion for Subpoenas and Appointment of Pro Bono Counsel 29 , signed by Magistrate Judge Erica P. Grosjean on 2/10/17. (Hellings, J)

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1 2 UNITED STATES DISTRICT COURT 3 EASTERN DISTRICT OF CALIFORNIA 4 5 BRIAN CAPUTO, 6 7 8 9 Plaintiff, v. 1:15-cv-01008-EPG (PC) ORDER DENYING MOTION FOR SUBPOENAS AND APPOINTMENT OF PRO BONO COUNSEL KERN COUNTY SHERIFF’S OFFICE, et (ECF NO. 29) al., Defendants. 10 11 I. BACKGROUND 12 Brian Caputo (“Plaintiff”) is a prisoner1 proceeding pro se and in forma pauperis in this 13 civil rights action filed pursuant to 42 U.S.C. § 1983. On July 16, 2015, Plaintiff consented to 14 Magistrate Judge jurisdiction in this action pursuant to 28 U.S.C. § 636(c) (ECF No. 5) and no 15 other parties have made an appearance. Therefore, pursuant to Appendix A(k)(4) of the Local 16 Rules of the Eastern District of California, the undersigned shall conduct any and all 17 proceedings in the case until such time as reassignment to a District Judge is required. Local 18 Rule Appendix A(k)(3). 19 On January 17, 2017, Plaintiff filed a motion for subpoenas and appointment of pro 20 bono counsel. (ECF No. 29). It appears that Plaintiff may also be requesting that the Court 21 reconsider its order denying Plaintiff’s motion for relief of medical neglect, medical 22 negligence, and medical abuse. All of Plaintiff’s requests will be denied. 23 Plaintiff’s request for subpoenas will be denied because discovery has not yet been 24 opened in this case. As the Court told Plaintiff in its First Informational Order in Prisoner/Civil 25 Detainee Civil Rights Case, “[a]fter defendants' answers are filed, the Court will issue an order 26 opening discovery and setting deadlines for completing discovery, amending the pleadings, and 27 28 1 At the time of the incidents alleged in the original Complaint, Plaintiff was incarcerated at Kern County Jail. He is now incarcerated at the Lompoc U.S. Penitentiary. 1 1 filing dispositive motions. No discovery may be initiated until the Court issues a discovery 2 order or otherwise orders that discovery begin.” (ECF No. 3, p. 4). The Court has not issued a 3 discovery order or otherwise ordered that discovery begin. Therefore, it is not yet time in this 4 case for Plaintiff to conduct discovery. 5 Further, to the extent that Plaintiff is requesting subpoenas to gather evidence related to 6 his medical treatment, as described in more detail in the Court’s order, which was signed on 7 February 7, 2017, and docketed on February 8, 2017 (ECF No. 32), Plaintiff is no longer 8 asserting a claim based on deliberate indifference to his serious medical needs. Therefore, 9 unless Plaintiff amends his complaint, even after discovery is opened there will be no need for 10 Plaintiff to take discovery on this issue. 11 To the extent that Plaintiff is requesting reconsideration of the Court’s order denying 12 Plaintiff’s motion for relief of medical neglect, medical negligence, and medical abuse, that 13 request will also be denied. Plaintiff has failed to show any of the reasons laid out in Federal 14 Rule of Civil Procedure 60(b). And while Plaintiff is requesting subpoenas so that he can 15 gather additional evidence, presumably so that he can show at least one of the reasons, the 16 Court emphasizes the fact that Plaintiff has been moved from Kern County Jail to a federal 17 prison. Therefore, even if Plaintiff amends his complaint to assert that the county jail and its 18 staff were deliberately indifferent to Plaintiff’s serious medical needs, and even if Plaintiff can 19 show that the county jail and its staff were deliberately indifferent to his serious medical needs, 20 as the Court has already told Plaintiff (ECF No. 26, pgs. 4-5) there is no need for a preliminary 21 injunction against Kern County Jail or its staff. 22 Finally, Plaintiff’s request for the appointment of pro bono counsel will be denied. 23 According to Plaintiff, he needs counsel appointed because he is incarcerated, has limited 24 knowledge of the law, and has to “go against” an attorney. 25 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 26 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 27 952 (9th Cir. 1998), and the Court cannot require an attorney to represent Plaintiff pursuant to 28 28 U.S.C. ' 1915(e)(1). Mallard v. United States District Court for the Southern District of 2 1 Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain exceptional 2 circumstances the Court may request the voluntary assistance of counsel pursuant to section 3 1915(e)(1). Rand, 113 F.3d at 1525. 4 Without a reasonable method of securing and compensating counsel, the Court will seek 5 volunteer counsel only in the most serious and exceptional cases. In determining whether 6 Aexceptional circumstances exist, the district court must evaluate both the likelihood of success 7 of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 8 complexity of the legal issues involved.@ Id. (internal quotation marks and citations omitted). 9 The Court will not order appointment of pro bono counsel at this time. At this early 10 stage in the proceedings (the complaint has not yet been screened), the Court cannot make a 11 determination that Plaintiff is likely to succeed on the merits. Moreover, while Plaintiff 12 appears to not fully understand the procedures he needs to follow, based on the record in this 13 case it appears that Plaintiff can adequately articulate his claims. Therefore, at this time the 14 Court will not order the appointment of pro bono counsel. Plaintiff is advised that he is not 15 precluded from renewing the motion for appointment of pro bono counsel at a later stage of the 16 proceedings. 17 18 Accordingly, based on the foregoing, it is ORDERED that Plaintiff’s motion for subpoenas and appointment of pro bono counsel (ECF No. 29) is DENIED. 19 20 21 IT IS SO ORDERED. Dated: February 10, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 3

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