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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BRIAN CAPUTO,

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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.

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I.

BACKGROUND

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Brian Caputo (“Plaintiff”) is a prisoner1 proceeding pro se and in forma pauperis in this

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civil rights action filed pursuant to 42 U.S.C. § 1983. On July 16, 2015, Plaintiff consented to

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Magistrate Judge jurisdiction in this action pursuant to 28 U.S.C. § 636(c) (ECF No. 5) and no

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other parties have made an appearance. Therefore, pursuant to Appendix A(k)(4) of the Local

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Rules of the Eastern District of California, the undersigned shall conduct any and all

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proceedings in the case until such time as reassignment to a District Judge is required. Local

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Rule Appendix A(k)(3).

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On January 17, 2017, Plaintiff filed a motion for subpoenas and appointment of pro

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bono counsel. (ECF No. 29). It appears that Plaintiff may also be requesting that the Court

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reconsider its order denying Plaintiff’s motion for relief of medical neglect, medical

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negligence, and medical abuse. All of Plaintiff’s requests will be denied.

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Plaintiff’s request for subpoenas will be denied because discovery has not yet been

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opened in this case. As the Court told Plaintiff in its First Informational Order in Prisoner/Civil

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Detainee Civil Rights Case, “[a]fter defendants' answers are filed, the Court will issue an order

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opening discovery and setting deadlines for completing discovery, amending the pleadings, and

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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.
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filing dispositive motions. No discovery may be initiated until the Court issues a discovery

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order or otherwise orders that discovery begin.” (ECF No. 3, p. 4). The Court has not issued a

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discovery order or otherwise ordered that discovery begin. Therefore, it is not yet time in this

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case for Plaintiff to conduct discovery.

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Further, to the extent that Plaintiff is requesting subpoenas to gather evidence related to

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his medical treatment, as described in more detail in the Court’s order, which was signed on

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February 7, 2017, and docketed on February 8, 2017 (ECF No. 32), Plaintiff is no longer

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asserting a claim based on deliberate indifference to his serious medical needs. Therefore,

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unless Plaintiff amends his complaint, even after discovery is opened there will be no need for

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Plaintiff to take discovery on this issue.

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To the extent that Plaintiff is requesting reconsideration of the Court’s order denying

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Plaintiff’s motion for relief of medical neglect, medical negligence, and medical abuse, that

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request will also be denied. Plaintiff has failed to show any of the reasons laid out in Federal

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Rule of Civil Procedure 60(b). And while Plaintiff is requesting subpoenas so that he can

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gather additional evidence, presumably so that he can show at least one of the reasons, the

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Court emphasizes the fact that Plaintiff has been moved from Kern County Jail to a federal

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prison. Therefore, even if Plaintiff amends his complaint to assert that the county jail and its

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staff were deliberately indifferent to Plaintiff’s serious medical needs, and even if Plaintiff can

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show that the county jail and its staff were deliberately indifferent to his serious medical needs,

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as the Court has already told Plaintiff (ECF No. 26, pgs. 4-5) there is no need for a preliminary

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injunction against Kern County Jail or its staff.

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Finally, Plaintiff’s request for the appointment of pro bono counsel will be denied.

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According to Plaintiff, he needs counsel appointed because he is incarcerated, has limited

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knowledge of the law, and has to “go against” an attorney.

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Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d

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952 (9th Cir. 1998), and the Court cannot require an attorney to represent Plaintiff pursuant to

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28 U.S.C. ' 1915(e)(1). Mallard v. United States District Court for the Southern District of
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Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain exceptional

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circumstances the Court may request the voluntary assistance of counsel pursuant to section

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1915(e)(1). Rand, 113 F.3d at 1525.

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Without a reasonable method of securing and compensating counsel, the Court will seek

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volunteer counsel only in the most serious and exceptional cases. In determining whether

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Aexceptional circumstances exist, the district court must evaluate both the likelihood of success

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of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the

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complexity of the legal issues involved.@ Id. (internal quotation marks and citations omitted).

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The Court will not order appointment of pro bono counsel at this time. At this early

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stage in the proceedings (the complaint has not yet been screened), the Court cannot make a

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determination that Plaintiff is likely to succeed on the merits. Moreover, while Plaintiff

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appears to not fully understand the procedures he needs to follow, based on the record in this

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case it appears that Plaintiff can adequately articulate his claims. Therefore, at this time the

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Court will not order the appointment of pro bono counsel. Plaintiff is advised that he is not

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precluded from renewing the motion for appointment of pro bono counsel at a later stage of the

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proceedings.

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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.

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IT IS SO ORDERED.
Dated:

February 10, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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