Whitaker v. Jaffe et al

Filing 74

ORDER signed by Magistrate Judge Edmund F. Brennan on 11/07/11 denying 63 , 67 Motions to Appoint Counsel. The clerk is directed to dismiss defendant Chen. The scheduling order is modified as follows: dispositive motions must be filed on or before 12/20/11. (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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JOSEPH WHITAKER,

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Plaintiff,

No. CIV S-10-1400 KJM EFB P

Defendants.

ORDER

vs.

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CHEN, et al.,

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/

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. He has filed two motions to appoint counsel. Dckt. Nos. 63, 67. The parties

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have filed a stipulation to dismiss defendant Chen with prejudice. Dckt. No. 65. Plaintiff has

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filed several documents stating that he mistakenly thought that a Dr. Tan was named Dr. Chen,

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and he wishes to add Tan as a defendant. Dckt. Nos. 63, 67, 68. He has also filed a document

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stating that he was unable to file objections to this court’s July 28, 2011 findings and

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recommendations because the library would not make a copy of the objections for him. Dckt.

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No. 66. Finally, plaintiff has filed several letters explaining that he has been in and out of the

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hospital. Dckt. Nos. 69, 70, 71, 72. Defendants have filed a motion to modify the scheduling

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order. Dckt. No. 73.

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I.

Motion to Appoint Counsel

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District courts lack authority to require counsel to represent indigent prisoners in

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section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In

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exceptional circumstances, the court may request counsel voluntarily to represent such a

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plaintiff. 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood

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v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). The court finds that there are no such

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exceptional circumstances in this case.

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II.

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Stipulation to Dismiss Chen with Prejudice
The parties have filed a stipulation for the voluntary dismissal of defendant Dr. Chen

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with prejudice. Defendants filed their answer on March 11, 2011. See Dckt. No. 36. Under Fed.

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R. Civ. P. 41(a)(1)(A)(ii), the plaintiff may voluntarily dismiss without a court order by filing a

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stipulation signed by all of the parties who have appeared. The parties have complied with the

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rule. The Clerk is directed to dismiss Dr. Chen from this action.

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III.

Request to add Dr. Tan as a Defendant

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Plaintiff seeks to add Dr. Tan as a defendant. See Dckt. No. 76 at 3-4. Plaintiff’s

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complaint contains claims against a Dr. Chen. Id. Plaintiff has since discovered that the

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defendant’s name is actually Dr. Tan. Id. Pursuant to Fed. R. Civ. P. 15 (a)(2), after 21 days

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after an responsive pleading has been served, a party may only amend its pleading with the

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opposing party’s consent or with the court’s leave, but the court should freely give leave when

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justice so requires.

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Local Rule 220 provides that any amended pleading “shall be retyped and filed so that it

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is complete in itself without reference to the prior or superseded pleading.” Here, plaintiff has

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not complied with this rule, as he has not filed a proposed amended complaint containing

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allegations against Dr. Tan. Therefore, the court denies plaintiff’s request to add Dr. Tan as a

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defendant without prejudice.

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If plaintiff wishes to add Dr. Tan as a defendant, he must file an amended complaint

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containing all of his allegations against all defendants, including his allegations against Dr. Tan.

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IV.

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Objections to July 28 Findings and Recommendations
Plaintiff has filed a document stating that he was unable to get his objections to this

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court’s July 28 findings and recommendations copied, and therefore he did not file his

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objections. Dckt. No. 66. To date, plaintiff has not filed objections. Yet plaintiff has filed a

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number of other documents. See Dckt. Nos. 67-72. Plaintiff does not explain why he was

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unable to submit his objections, yet able to submit his other filings. Nor does plaintiff explicitly

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request an extension of time to file his objections. As plaintiff has not clearly sought relief, the

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court takes no action on this filing.

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V.

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Modification of Scheduling Order
Plaintiff has filed several documents explaining that he has been in and out of the

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hospital. See Dckt. Nos. 69, 70, 71, 72. Defendants have filed a motion to modify the

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scheduling order, asking that the deadline to file dispositive motions be extended until December

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20, 2011. Dckt. No. 73. Defendants explain that plaintiff has been unable to litigate his case and

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has been unable to review the transcript of his deposition because he was admitted to his prison’s

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Correctional Treatment Center. Id. at 2. Plaintiff was due to be discharged from the treatment

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center on October 10, 2011. Id. It appears that there is good cause to modify the scheduling

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order, and the court grants defendants’ request.

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VI.

Conclusion

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motions to appoint counsel are denied without prejudice.

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2. The Clerk is directed to dismiss defendant Chen.

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3. The scheduling order is modified as follows: dispositive motions must be filed on or

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before December 20, 2011.

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DATED: November 7, 2011.

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