Lasher v. Miranda et al

Filing 102

ORDER signed by Judge John A. Mendez on 1/21/2015 ORDERING 100 Defendants' motion to modify the scheduling order to substitute Dr. Williams as an expert witness is GRANTED; plaintiff's motion for appointment of counsel is DENIED 101 ; plaintiff's motion to reopen discovery is DENIED; and Jury Trial Reset for 6/8/2015 at 08:30 AM in Courtroom 6 (JAM) before Judge John A. Mendez. (Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GARY LASHER,

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No. 2:11-cv-2564 JAM KJN P
Plaintiff,

v.

ORDER

R. MIRANDA, et al.,
Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. On January 7, 2015, the court vacated the January 26, 2015 trial date on

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grounds that the December 29, 2014 order confirming the trial date served on plaintiff was

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returned by the postal service. On January 15, 2015, plaintiff filed a response to defendants’

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January 7, 2015 motion to modify the pretrial order. (ECF No. 101). Plaintiff’s January 7, 2015

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pleading contains his current address and court records have been amended to reflect this new

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address. Accordingly, the trial date is reset herein.

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Two motions are pending before the court.

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Defendants’ Motion to Modify the Pretrial Order (ECF No. 100)

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In the motion to modify the pretrial order, defendants request that the pretrial order be

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modified to allow them to substitute an expert witness. (ECF No. 100). Defendants listed Dr.

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Dowback as a medical expert in their pretrial statement. (Id. at 1.) Because the trial date has
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been reset on several occasions, Dr. Dowback is no longer willing to participate in the trial. (Id.)

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Defendants request that the court allow them to call Dr. Gabrial Williams as a medical expert

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instead of Dr. Dowback. (Id. at 2.)

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The court may modify a final pretrial order only to prevent manifest injustice. Fed. R.

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Civ. P. 16(e). The following factors must be considered in determining whether to modify the

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pretrial order: (1) degree of prejudice or surprise to plaintiff; (2) the ability of plaintiff to cure any

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prejudice; (3) the impact of the modification on the orderly and efficient conduct of the case; and

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(4) any degree of willfulness or bad faith on the part of defendant. Hunt v. County of Orange,

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672 F.3d 606, 616 (9th Cir. 2012).

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Plaintiff will not be prejudiced by the substitution of Dr. Williams as an expert witness.

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As noted by defendants in their motion, Dr. Williams will testify on the same issues as Dr.

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Dowback. Plaintiff can ask the same questions of Dr. Williams that he would pose to Dr.

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Dowback. Should Dr. Williams express an opinion different from that expressed by Dr.

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Dowbeck, plaintiff can impeach Dr. Williams with Dr. Dowback’s report.

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Allowing defendants to substitute Dr. Williams as an expert witness will not impact the

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orderly and efficient conduct of the case. The court also finds no willfulness or bad faith on the

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part of defendants in connection with the pending request.

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Good cause appearing, defendants’ motion to modify the pretrial order to substitute Dr.

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Williams as an expert witness is granted.

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Plaintiff’s Motion for Appointment of Counsel and to Reopen Discovery

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Plaintiff requests that the court appoint counsel. (ECF No. 101.) District courts lack

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authority to require counsel to represent indigent prisoners in section 1983 cases. Mallard v.

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United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may

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request an attorney to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell

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v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36

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(9th Cir. 1990). When determining whether “exceptional circumstances” exist, the court must

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consider plaintiff’s likelihood of success on the merits as well as the ability of the plaintiff to

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articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v.
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Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to

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appoint counsel). The burden of demonstrating exceptional circumstances is on the plaintiff. Id.

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Circumstances common to most prisoners, such as lack of legal education and limited law library

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access, do not establish exceptional circumstances that warrant a request for voluntary assistance

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of counsel.

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Having considered the factors under Palmer, the court finds that plaintiff has failed to

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meet his burden of demonstrating exceptional circumstances warranting the appointment of

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counsel.

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Plaintiff also requests that the court reopen discovery. (ECF No. 101.) The grounds of

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this request are that plaintiff has been transferred more than eight times since filing this action,

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hindering his access to his legal property. Plaintiff also alleges that he was in administrative

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segregation at various times, which also hindered his access to his legal property. For the

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following reasons, plaintiff’s motion to reopen discovery is denied.

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On March 21, 2012, Magistrate Judge Newman issued the scheduling order, setting the

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discovery cut-off date for July 13, 2012. (ECF No. 26.) On June 27, 2012, plaintiff filed a notice

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of change of address indicating that he had been transferred to the California Training Facility

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(“CTF”). (ECF No. 33.) On July 12, 2012, defendants filed a motion to modify the scheduling

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order to extend the discovery deadline in order to complete plaintiff’s deposition. (ECF No. 34.)

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On August 17, 2012, Magistrate Judge Newman granted defendants’ motion and ordered

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defendants to conduct plaintiff’s deposition on or before August 31. 2012. (ECF No. 37.)

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On August 29, 2012, plaintiff filed a motion to compel and to reopen discovery. (ECF

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No. 38.) On October 18, 2012, Magistrate Judge Newman denied this motion. (ECF No. 47.)

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“In general, the pretrial scheduling order can only be modified ‘upon a showing of good

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cause.’” Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002)

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(quoting Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992)). “The

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pretrial schedule may be modified ‘if it cannot reasonably be met despite the diligence of the

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party seeking the extension.’” Id. (quoting Johnson, 975 F.2d at 609). If the party seeking the

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modification “was not diligent, the inquiry should end” and the motion to modify should not be
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granted. Id. (quoting Johnson, 975 F.2d at 609).
The record demonstrates that plaintiff was granted an adequate opportunity to conduct

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discovery. His request to reopen discovery was previously considered and rejected. Plaintiff has

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not shown good cause to revisit this request. Accordingly, plaintiff’s motion to reopen discovery

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is denied.

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Accordingly, IT IS HEREBY ORDERED:

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1. Defendants’ motion to modify the scheduling order to substitute Dr. Williams as an

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expert witness (ECF No. 100) is granted;
2. Plaintiff’s motion for the appointment of counsel (ECF No. 101) is denied;

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3. Plaintiff’s motion to reopen discovery (ECF No. 101) is denied;

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4. The jury trial is reset for June 8, 2015 at 8:30 a.m. before the undersigned.

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DATED: 1/21/2015

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/s/ John A. Mendez_____________________________

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JOHN A. MENDEZ, U.S. DISTRICT COURT JUDGE

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