Hughes v. CDCR

Filing 77

ORDER signed by District Judge Kimberly J. Mueller on 2/29/2016 DECLINING TO ADOPT 67 Findings and Recommendations; DENYING 62 Motion to Compel without prejudice. (Michel, G.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BERNARD HUGHES,

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Plaintiff,

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No. 2:11-cv-1856-KJM-EFB P

v.

ORDER

MARTIN H. JANSEN, M.D., et al.,

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Defendants.

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Plaintiff, a state prisoner, has filed this civil rights action seeking relief under 42 U.S.C.

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§ 1983. The matter was referred to a United States Magistrate Judge as provided by 28 U.S.C.

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§ 636(b)(1)(B) and Local Rule 302.
On December 1, 2015, the magistrate judge filed findings and recommendations, which

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were served on all parties and which contained notice to all parties that any objections to the

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findings and recommendations were to be filed within fourteen days. Plaintiff has filed

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objections to the findings and recommendations.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

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court has conducted a de novo review of this case. The magistrate judge recommends that a

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document filed by plaintiff pro se on October 22, 2015, ECF No. 62, be construed as a motion for

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preliminary injunction and, so construed, that the motion be denied.

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At issue in this litigation is whether defendants are acting with deliberate indifference to

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plaintiff’s serious medical need for adequate treatment of his major depressive disorder,

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specifically, by taking plaintiff off Wellbutrin. See ECF No. 62 at1-2. At the time plaintiff filed

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the motion before the court, he believed he was represented by counsel who had been appointed

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in this matter “for the limited purposes of investigating plaintiff’s claims, drafting and filing an

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amended complaint, and assessing the need for a temporary restraining order.” ECF No. 75 at 1,

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citing ECF No. 48. By the motion before the court, he sought an order requiring his court

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appointed counsel to seek an order requiring defendants to provide him with proper mental health

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care. ECF No. 62 at 2.

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On February 16, 2016, the magistrate judge issued an order requiring court appointed

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counsel to return plaintiff’s case file to him and file a statement certifying that he has done so

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while also clarifying whether he wishes to continue to represent plaintiff in this action. ECF No.

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75 at 2. Pending that clarification, the court will not consider whether injunctive relief is

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appropriate. Plaintiff’s motion will be denied without prejudice to its renewal, as appropriate,

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following compliance with the magistrate judge’s February 16, 2016 order.

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The court has reviewed the allegations of the Second Amended Complaint (SAC),

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prepared by court appointed counsel. The SAC is the operative complaint in this action. As the

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record now shows, see ECF No. 75, plaintiff asserts that he did not have a copy of the SAC at the

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time he filed the motion before the court. Given the allegations contained in that motion, the

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court has requested the Special Master in Coleman v. Brown, Case No. 90-cv-0520 KJM KJN, to

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check on plaintiff’s current mental health status.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed December 1, 2015, are not adopted; and

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2. Plaintiff’s motion (ECF No. 62) is denied without prejudice.

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DATED: February 29, 2016

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UNITED STATES DISTRICT JUDGE

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