Clewis v. California Prison Health Case Services

Filing 31

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 06/27/11 ORDERING that both plaintiff's request for the court to appoint plaintiff a legal assistant and his alternative request for appointment of counsel filed 06/17/11 29 are denied. Also, RECOMMENDING that the unserved defendant Dr. Jen be dismissed without prejudice from this action. Referred to Judge John A. Mendez. Objections due within 14 days.(Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARCUS LARRY CLEWIS,

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Plaintiff,

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No. CIV S-09-2120 JAM GGH P

vs.
CALIFORNIA PRISON HEALTH
CARE SERVICES, et al.,

ORDER and

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Defendants.

FINDINGS AND RECOMMENDATIONS

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Plaintiff, a state prisoner, is proceeding pro se with a civil rights action pursuant to

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42 U.S.C. § 1983. By Order, filed on August 30, 2010 (docket # 20), this court directed service

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of the summons and amended complaint upon defendants Dr. Jen and Rebecca Asp. On

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November 16, 2010 (docket # 23), plaintiff was directed to provide additional information for

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defendant Dr. Jen to be served because process had been returned unserved as to this defendant.

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When plaintiff failed to respond to that order, by an Order, filed on June 2, 2011 (docket # 28),

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plaintiff was directed to show good cause why unserved defendant Dr. Jen should not be

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dismissed without prejudice from this action, pursuant to Fed. R. Civ. P. 4(m), within fourteen

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days; defendant’s counsel was, in the same period, therein ordered to query the California

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Department of Corrections (CDCR) and Rehabilitation as to the whereabouts of defendant Dr.

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Jen.

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In response to the show cause order, plaintiff contends that the CDCR and the

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Attorney General have a “standing rule” not to reveal the whereabouts of former employees to

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shield them from civil liability and cites two cases where he says the CDCR and AG so

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maintained and a defendant in each case was dismissed unserved. See docket # 29. Apparently

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by way of explanation for having failed to respond to the court’s earlier order, plaintiff also

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asserts that he did not know he was to keep the court apprised of any change in his address and

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therein submits a notice of an address change. See id.

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The attorneys for defendant Asp, on the other hand, point out that they are not

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with the Attorney General’s Office and defendant’s counsel, Kelly Yokley, has submitted a

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declaration that counsel, in response to the court’s order, made immediate contact with the Legal

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Affairs division of CDCR and, on June 8, 2011, received notice from CDCR’s Legal Affairs

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office that, following a review of personnel files and the registry, they had found that no

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individual named Dr. Jen has ever worked at California State Prison in Sacramento.1 See docket

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# 30. Thereafter, on June 10, 2011, defendant’s counsel received notice from CDCR Legal

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Affairs that a Dr. Jen has never worked for CDCR, from which defendant’s counsel logically

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concluded that plaintiff must have named the wrong CDCR doctor

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As previously set forth, in relevant part, Fed. R. Civ. 4(m) states:
[i]f a defendant is not served within 120 days after the complaint is
filed, the court — on motion or on its own after notice to the
plaintiff — must dismiss the action without prejudice against that
defendant or order that service be made within a specified time.
But if the plaintiff shows good cause for the failure, the court must
extend the time for service for an appropriate period.

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It has been more than 300 days since service was directed upon defendant Dr. Jen.

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See docket # 20. Plaintiff, who has evidently failed to identify this defendant correctly, has not

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The claims which gives rise to this cause of action are alleged against two individuals
who are or were employed at CSP-Sacramento. See first amended complaint (docket # 15).
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shown good cause why the expenditure of further time and limited judicial resources are

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warranted in this instance. As plaintiff has failed to show good cause why this apparently mis-

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named defendant should not be dismissed and how continued efforts to serve him/her would not

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prove futile, the court will now dismiss defendant Dr. Jen without prejudice under Fed. R. Civ. P.

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4(m). Johnson v. Meltzer, 134 F.3d 1393, 1396 (9th Cir. 1998) (Fed. Rule Civ. P. 4(m) provides

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that a defendant, unserved after 120 days, shall be dismissed by the district court without

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prejudice).

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Plaintiff’s Requests

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In his show cause response, plaintiff asks the court to appoint an individual he

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identifies as Tanya Gamble as his “legal document provider, legal researcher,” so that she can

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“be paid for her services.” Docket # 29, p. 5. However, the expenditure of public funds on

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behalf of an indigent litigant is proper only when authorized by Congress. Tedder v. Odel, 890

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F.2d 210 (9th Cir. 1989). The in forma pauperis statute does not authorize the expenditure of

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public funds for a non-attorney legal assistant. See 28 U.S.C. § 1915. The request for a court-

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appointed legal assistant will be denied.

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In the alternative, plaintiff seeks appointment of counsel. The United States

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Supreme Court has ruled that district courts lack authority to require counsel to represent

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indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298

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(1989). In certain exceptional circumstances, the court may request the voluntary assistance of

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counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.

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1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). In the present case, the

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court does not find the required exceptional circumstances. Plaintiff’s request for the

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appointment of counsel will therefore be denied.

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Accordingly, IT IS HEREBY ORDERED that both plaintiff’s request for the court

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to appoint plaintiff a legal assistant and his alternative request for appointment of counsel, filed

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on June 17, 2011 (docket # 29), are denied; and
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IT IS RECOMMENDED that the unserved defendant Dr. Jen be dismissed
without prejudice from this action, pursuant to Fed. R. Civ. P. 4(m).

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen

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days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served and filed within fourteen days after service of the objections. The parties are

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advised that failure to file objections within the specified time may waive the right to appeal the

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District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: June 27, 2011

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/s/ Gregory G. Hollows
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GREGORY G. HOLLOWS
UNITED STATES MAGISTRATE JUDGE

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GGH:009
clew2120.ofr

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