Millner v. Woods et al

Filing 43

ORDER DENYING, WITHOUT PREJUDICE 38 Motion for Summary Judgment ; ORDER DENYING, WITHOUT PREJUDICE 39 Motion to Appoint Counsel ; ORDER DENYING AS PREMATURE 42 Motion for Jury Trial, signed by Magistrate Judge Stanley A. Boone on 9/28/18. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES MILLNER,

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Plaintiff,
v.
DR. WOODS, et al.,
Defendants.

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Case No.: 1:16-cv-01209-SAB (PC)
ORDER DENYING DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT, WITHOUT
PREJUDICE
[ECF No. 38]
ORDER DENYING IN PART PLAINTIFF’S
MOTION TO STRIKE MOTION FOR SUMMARY
JUDGMENT
[ECF No. 41]
ORDER DENYING PLAINTIFF’S MOTION TO
APPOINT COUNSEL
[ECF No. 40]
ORDER DENYING PLAINTIFF’S MOTION FOR
JURY TRIAL
[ECF No. 42]
TEN-DAY DEADLINE

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I.

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INTRODUCTION

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Plaintiff James Millner is appearing pro se in this civil rights action pursuant to 42 U.S.C. §

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1983. This action proceeds on Plaintiff’s claim against Defendants Woods and Hashem, in their

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individual capacities, for deliberate indifference to a serious dental need in violation of the Eighth

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Amendment. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. §

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636(b)(1)(B) and Local Rule 302.

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Currently before the Court are Plaintiff’s motions for the appointment of counsel, (ECF No.
39), and motion for a jury trial, (ECF No. 42), both filed on September 24, 2018.
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Defendants filed a motion for summary judgment in this case on September 7, 2018. (ECF No.

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38.) Plaintiff has now filed an opposition to that motion, which also includes a motion to strike

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Defendants’ summary judgment motion. (ECF No. 41.) The Court addresses each of Plaintiff’s

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motions in turn.

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II.

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MOTION TO APPOINT COUNSEL

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Plaintiff seeks the appointment of counsel, stating that he cannot afford to hire an attorney, his

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imprisonment and disabilities limits his ability to litigate, he has no legal training, and that the issues

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are complex and evidence would be better presented by a lawyer.

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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), and the court cannot require any 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 Southern

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District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court

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may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at

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1525. 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.

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“exceptional circumstances exist, the district court must evaluate both the likelihood of success on the

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

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legal issues involved.” Id. (internal quotation marks and citations omitted).

In determining whether

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In the present case, the Court does not find the required exceptional circumstances. Even if it

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assumed that Plaintiff is not well versed in the law and that he has made serious allegations which, if

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proved, would entitle him to relief, his case is not exceptional. The legal issues present in this action

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are not complex, and Plaintiff has thoroughly set forth his allegations in his pleading. In addition, the

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Court cannot determine that Plaintiff is likely to succeed on the merits. Circumstances common to

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most prisoners, such as lack of legal education and limited law library access, do not establish

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exceptional circumstances that would warrant a request for voluntary assistance of counsel.
Therefore, Plaintiff’s motion for the appointment of counsel will be denied, without prejudice.

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III.

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MOTION FOR A JURY TRIAL

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In support of Plaintiff’s motion for a jury trial, he asserts that this case involves complex

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medical records that require an expert witness. He further asserts that he believes Defendants have

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destroyed or altered records, although he does not wish for the Court to compel those records.

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Therefore, he seeks for a jury trial to be set so that the evidence can be evaluated. He states that he

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will file separate motions seeking appointment of an unbiased expert, and to amend his complaint.

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The Court denies Plaintiff’s motion for a jury trial, as premature. As noted above, this case is

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at the summary judgment stage, and it has not yet been determined whether there is a triable dispute of

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material fact. The Court will set a trial in the regular course, if appropriate, and no motion by the

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parties will be necessary.

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The Clerk of the Court has docketed Plaintiff’s motion to amend his complaint, which the

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Court will rule upon when fully briefed. See Local Rule 230(l). No motion seeking the appointment

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of any neutral expert witness is pending.

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IV.

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MOTION TO STRIKE

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Finally, the Court addresses motion to strike Defendants’ motion for summary judgment, set

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forth in his opposition brief. (ECF No. 41.) Plaintiff asserts that Defendants’ motion for summary

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judgment is procedurally defective for failure to provide a sufficient Rand notice.

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In Woods v. Carey, 684 F.3d 934, 939 (9th Cir. 2012), the Ninth Circuit held that a pro se

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prisoner plaintiff must be provided with “fair notice” of the requirements for opposing a motion for

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summary judgment at the time the motion is brought. Review of Defendants’ summary judgment

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motion filed on September 7, 2018 (ECF No. 38) shows that Defendants did not provide Plaintiff with

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a sufficient Rand notice. See Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998). The Rand notice must

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be on a separate form, containing all the Rand requirements independent of the summary judgment

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motion or papers filed in support thereof. Rand, 154 F.3d at 960. In addition, the notice must advise

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Plaintiff of the contents of any applicable Eastern District of California Local Rule requirements, i.e.

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Local Rule 260. Id. at 961.
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The Court does not find it appropriate to strike Defendants’ summary judgment motion.

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Instead, the motion shall be denied, without prejudice. Defendants shall file their motion for summary

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judgment and serve it, along with an appropriate Rand notice, upon Plaintiff within ten (10) days of

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this order.

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Within twenty-one (21) days of the filing and service of Defendants’ motion for summary

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judgment and separate Rand notice, Plaintiff shall provide written notice to the Court whether he

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intends to stand upon his opposition filed on September 24, 2018, or he may file a new opposition.

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Within seven (7) days of the filing in CM/ECF of Plaintiff’s opposition or notice that he intends to

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stand upon his prior opposition, Defendants may file a reply brief. Local Rule 230(l).

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V.

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CONCLUSION

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For the reasons explained above, it is HEREBY ORDERED that:

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is denied, without prejudice;
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Plaintiff’s motion to appoint counsel, filed on September 24, 2018 (ECF No. 39) is

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denied, without prejudice;
Plaintiff’s motion for jury trial, filed on September 24, 2018 (ECF No. 42), is denied, as

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Defendants shall file their motion for summary judgment within ten (10) days of this

order, and shall provide Plaintiff with the appropriate Rand notice;

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Defendants’ motion for summary judgment, filed on September 7, 2018 (ECF No. 38)

premature.

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IT IS SO ORDERED.

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Dated:

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September 28, 2018
UNITED STATES MAGISTRATE JUDGE

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