Sykes v. Athannasious et al

Filing 47

ORDER signed by Magistrate Judge Kendall J. Newman on 8/8/13 ORDERING that Mr. Fischer shall, within 14 days after the filing date of this order, submit to the court, and serve on plaintiff, a confidential statement that is responsive to plaintiffs concerns (ECF Nos. 44 -6). Plaintiff may, within 7 days after service of counsels statement, submit to the court, and serve on Mr. Fischer, a confidential responsive statement.(Dillon, M)

(PC) Sykes v. Athannasious et al

Doc. 47

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

MILTON SYKES,

12
13

Plaintiff,

No. 2:12-cv-2570 KJM KJN P

vs.

14

ATHANNASIOUS, et al.,

15

Defendants.

16

ORDER
/

17

Plaintiff is a state prisoner, currently incarcerated at the California Medical

18

Facility, in Vacaville, California, who proceeds with appointed counsel, Mr. Isaac Fischer, for

19

several limited purposes.1 (See ECF No. 28.) Counsel was appointed in this case due to

20
21

1

22

a. Meet and confer with plaintiff regarding the allegations and claims set
forth in his complaint;

Mr. Fischer was appointed for the following purposes (ECF No. 28 at ):

23
24
25
26

b. Provide the U.S. Marshal with any additional information necessary to
perfect service of process on all defendants;
c. Assess whether appointment of a medical expert is appropriate and, if so,
select and obtain the consulting and reporting services of such expert,
subject to the court’s authorization of such expenses; and

Dockets.Justia.com

1

plaintiff’s age (78 years) and limited education, together with the apparent seriousness of

2

plaintiff’s medical issues and deliberate indifference claims.

3

Nevertheless, this action has been delayed due to the fact that one of the primary

4

defendants, Dr. Bick, has been living outside the country for a year, to return by the end of this

5

month, August 2013. (See ECF Nos. 42-3.) The Attorney General’s office recently stated that it

6

will accept service on behalf of Dr. Bick, but only “pending his authorization upon his return.”

7

(ECF No. 43 at 1).

8

Within the last two weeks, plaintiff, in pro se, has filed three separate motions to

9

file an amended complaint. (See ECF Nos. 44-6.) Most significantly, plaintiff seeks to add

10

additional defendants whom he believes are essential to his claims. Plaintiff alleges that Mr.

11

Fischer has not been in contact with plaintiff since an initial visit, and has since refused to answer

12

plaintiff’s telephone calls or respond to plaintiff’s correspondence.

13

A plaintiff who is represented by counsel is precluded from filing and serving

14

matters in pro se. However, when it appears that a prisoner litigant and his appointed counsel

15

are experiencing communication difficulties, the court will seek to ascertain whether the

16

appointment should continue. Importantly, in the instant case, it is reasonable to assume that Mr.

17

Fischer has been awaiting the return of Dr. Bick, and service of process upon him, before actively

18

proceeding in this action. Mr. Fischer has missed no deadlines or failed to adhere to any orders

19

of this court. Nevertheless, the court will require Mr. Fischer to respond to plaintiff’s concerns,

20

and to identify any progress he has made toward achieving the other goals of his appointment.

21

////

22

////

23
24
25
26

d. Participate in an early settlement conference, if all parties request such a
conference, after all defendants have been served.
The court noted that, “[i]f this action proceeds after the conclusion of an early settlement
conference, Mr. Fischer’s appointment will be reevaluated, including consideration whether
counsel wishes to continue representing plaintiff through discovery, motions, a further settlement
conference, and/or trial.” (Id.)

1

Accordingly, for good cause shown, within fourteen (14) days after the filing date

2

of this order, Mr. Fischer shall submit to the court, a confidential statement2 that is responsive to

3

plaintiff’s several concerns, as set forth in his recent pleadings, supporting declarations and

4

exhibits (ECF Nos. 44-6). Counsel shall generally inform the court of the services he has

5

provided to date; whether counsel finds good cause for amendment of the operative complaint; or

6

whether counsel recommends the commencement of discovery on the operative complaint, even

7

while awaiting service of process on defendant Bick; whether counsel has assessed the

8

appropriateness of a medical expert and, if so, whether counsel has selected one; the reasons

9

underlying each of these assessments; and whether counsel has any reservations about continuing

10

to represent plaintiff in this action. Counsel shall serve a copy of his statement on plaintiff, who

11

may, within seven (7) days after service, send3 a confidential responsive statement to the court’s

12

mailing address, and serve a copy on Mr. Fischer.

13

In summary, IT IS HEREBY ORDERED that:

14

1. Mr. Fischer shall, within fourteen (14) days after the filing date of this order,

15

submit to the court, and serve on plaintiff, a confidential statement that is responsive to plaintiff’s

16

concerns (ECF Nos. 44-6).

17
18

2. Plaintiff may, within seven (7) days after service of counsel’s statement,
submit to the court, and serve on Mr. Fischer, a confidential responsive statement.

19
20

SO ORDERED.
DATED: August 8, 2013
_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE

21
22
23

2

Mr. Fischer shall submit his confidential statement to the undersigned at
[e-mail]

24
3

25
26

Plaintiff may submit his statement by email (see n.2, supra), if available. Alternatively,
plaintiff shall send his statement to the attention of the undersigned magistrate judge, at the
United States District Court, Eastern District of California, 501 “I” Street, Sacramento CA
95814. Upon review of the submissions the undersigned will determine whether it is appropriate
to file the submissions, either under seal or not.