Mario Molina v. Holland et al

Filing 27

ORDER Denying 20 Miscellaneous Requests for Relief signed by Magistrate Judge Erica P. Grosjean on 12/27/2016. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARIO MOLINA,

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Plaintiff,

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v.
K. HOLLAND, et al.,

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1:15-cv-01260-EPG (PC)
ORDER DENYING
MISCELLANEOUS REQUESTS FOR
RELIEF
(ECF NO. 20)

Defendants.

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I.

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BACKGROUND
Plaintiff, Mario Molina (APlaintiff@), is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. ' 1983.

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Complaint commencing this action on August 17, 2015. (ECF No. 1). On September 2, 2015,

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Plaintiff consented to the jurisdiction of a United States Magistrate Judge (ECF No. 8), and no

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other party has appeared in this action. 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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Plaintiff filed the

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II.

PLAINTIFF’S PRIOR REQUEST FOR EMERGENCY MEDICAL CARE

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On February 8, 2016, Plaintiff filed a request for an emergency court order for medical

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attention to his cornea implant, which he claims came out of place, causing him tremendous

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pain. (ECF No. 16).

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On February 17, 2016, the Court requested a response from the Office of the Attorney

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General. (ECF No. 17). On March 2, 2016, the Office of the Attorney General filed a response

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(ECF No. 18). The Office of the Attorney General stated in its response that Plaintiff has had

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multiple corneal implants with repeated rejections. (Id.). Plaintiff’s ophthalmology care is

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being followed by Dr. Tawansy of Golden State Eye Medical Group. (Id.). Plaintiff was

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evaluated by Dr. Tawansy on February 24, 2016, and is scheduled for additional surgery. (Id.).

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The Office of the Attorney General also submitted a declaration from the Chief Physician and

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Surgeon at Plaintiff’s institution regarding Plaintiff’s medical care. (ECF No. 18-1, p. 2). It

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included a description of multiple medical appointments attending to Plaintiff’s situation,

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including a statement from Plaintiff “‘that he feels fine.’” (Id. at p. 3). The declaration also

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indicates a dispute regarding Plaintiff’s request for morphine and the medical provider’s

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opinion that morphine was not justified at that time. (Id.).

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On March 25, 2016, the Court denied Plaintiff’s request for an emergency court order.

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(ECF No. 19). The Court denied Plaintiff’s requested relief for lack of jurisdiction, explaining

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that it had not yet screened Plaintiff’s complaint. The Court noted that it had submitted

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Plaintiff’s request for injunctive relief to the Office of the Attorney General in an abundance of

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caution, who had responded that Plaintiff was receiving medical care and did not have an

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urgent medical need for the pain medication being requested. (Id.).

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III.

PLAINTIFF’S OBJECTIONS AND REQUESTS

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On April 11, 2016, Plaintiff filed an objection (“the Objection”) to the response. (ECF.

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No. 20). Plaintiff’s response indicated that Plaintiff had indeed received medical attention

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immediately following the Court’s request for a response from the Office of the Attorney

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General.

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However, Plaintiff claims that the declaration submitted by Dr. C. McCabe in response to the

(Id. at p. 2).

Plaintiff received necessary surgery on March 10, 2016.

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(Id.).

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Court’s order was misleading, and that a history of his medical care demonstrates the prison

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staff ignoring his medical needs. (Id. at pgs. 2-7).

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Plaintiff askes the Court to:
1. Assign a federal special master to oversee Plaintiff’s medical care at Corcoran

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State Prison (“CSP”);

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2. Order the Office of the Attorney General to submit a declaration from Dr.

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Khaled Tawansy, describing the treatment that Plaintiff went through since the

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first cornea transplant, and explaining why there has been several cornea

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transplants;
3. “Issue an order that the CSP-medical staff stop playing with [P]laintiff[’s] pain

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medication….”; and

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4. Appoint pro bono counsel.

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Plaintiff’s requests will be denied at this time. The next stage in this case is for this

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Court to screen Plaintiff’s recently submitted amended complaint (ECF No. 26) to determine if

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it states a valid claim under the law. If it states a claim, the case will proceed in the normal

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course, including discovery by both parties, and eventually resolving the merits of Plaintiff’s

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complaint at trial, if the case has not resolved before then. As the case is still in the screening

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stage, the Court cannot force the prison to take certain actions. As the Court explained in its

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earlier order, federal courts are courts of limited jurisdiction, and in considering a request for

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preliminary injunctive relief the Court is bound by the requirement that, as a preliminary

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matter, it have before it an actual case or controversy. City of Los Angeles v. Lyons, 461 U.S.

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95, 102 (1983); Valley Forge Christian Coll. v. Ams. United for Separation of Church and

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State, Inc., 454 U.S. 464, 471 (1982). If the Court does not have an actual case or controversy

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before it, it has no power to hear the matter in question. (Id.). Here, the Complaint has not yet

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been screened, let alone been served on any of the defendants. Therefore, the Court does not

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have jurisdiction to rule on the first three requests at this time.

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IV.

PLAINTIFF’S REQUEST FOR APPOINTMENT OF PRO BONO COUNSEL

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As to Plaintiff’s request for the appointment of pro bono counsel, that request will be

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denied without prejudice. Plaintiff does not have a constitutional right to appointed counsel in

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this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on reh'g

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en banc, 154 F.3d 952 (9th Cir. 1998), and the Court cannot require an attorney to represent

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Plaintiff pursuant to 28 U.S.C. ' 1915(e)(1). Mallard v. United States District Court for the

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Southern District of Iowa, 490 U.S. 296, 298 (1989).

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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.

However, in certain exceptional

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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, a district court must evaluate both the likelihood of success

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on 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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Plaintiff argues that he needs counsel because he does not speak, read, write, or

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understand the English language, and because he does not have any skill in the law. While the

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Court is sympathetic to Plaintiff’s plight, at this early stage in the proceedings the Court cannot

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make a determination that Plaintiff is likely to succeed on the merits. Additionally, given

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Plaintiff’s filings in this case, it appears that Plaintiff has been able to find someone to assist

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him in communicating with the Court. Accordingly, the Court will deny Plaintiff’s request for

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pro bono counsel, without prejudice to the request being renewed at a later stage of the

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proceedings.

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V.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that the requests for injunctive

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relief and appointment of pro bono counsel included in the Objection (ECF No. 20) are

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DENIED without prejudice.

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IT IS FURTHER ORDERED that The Clerk of Court is directed to serve a copy of this

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order, as well as Plaintiff’s Objections (ECF No. 20), on the Office of the Attorney General,
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attention to Monica Anderson. No response is required by the Office of the Attorney General

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at this time.

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IT IS SO ORDERED.
Dated:

December 27, 2016

/s/
UNITED STATES MAGISTRATE JUDGE

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