Sykes v. Athannasious et al

Filing 49

ORDER signed by Magistrate Judge Kendall J. Newman on 10/4/13 ORDERING that Plaintiffs motions to amend the complaint, filed in pro se 44 45 and 46 , are denied without prejudice. Mr. Fisher shall retain his appointment as pro bono counsel f or plaintiff, absent further order of this court. Discovery may commence in this action, pursuant to the Discovery and Scheduling Order, filed in tandem with this order. In addition, counsel with the California Attorney Generals Office shall, wi thin fourteen days after the filing date of this order, file and serve a statement that updates defense counsels statement filed July 19, 2013 (ECF No. 43), which indicated that the Office would likely accept service of process on behalf of defendant Dr. Bick, upon his anticipated return to the United States in late August 2013. Alternatively, within fourteen days, the Office may accept service of process in this action on behalf of defendant Dr. Bick.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MILTON SYKES,

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

Plaintiff,
v.
ATHANNASIOUS, et al.,

ORDER

Defendants.

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On August 9, 2013, this court directed plaintiff’s appointed counsel to respond to

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plaintiff’s motions to amend his complaint, filed in pro se; each motion also criticizes counsel’s

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representation of plaintiff. Counsel timely submitted a confidential response, which he served on

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plaintiff. Although plaintiff was directed to submit and serve a confidential response within

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seven days, he failed to do so. On September 16, 2013, the court again directed plaintiff to

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submit a response; plaintiff again failed to respond. Hence, the court twice directed plaintiff to

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respond to his counsel’s declaration (ECF Nos. 47, 48), both orders triggered by plaintiff’s pro se

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filings expressing dissatisfaction with his legal representation and seeking amendment of his

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complaint (ECF Nos. 44-6). However, plaintiff has responded to neither order, nor otherwise

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communicated with the court.

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The court construes plaintiff’s silence as acquiescence to his continued representation by
appointed counsel, Mr. Isaac Fisher. It is clear from Mr. Fisher’s declaration that he is actively
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involved in plaintiff’s representation.
Moreover, as previously noted, the court is keenly aware of plaintiff’s advanced age (78),

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and alleged medical problems. (See ECF No. 48 at 2.) As of this writing, plaintiff remains

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incarcerated at the California Medical Facility. Plaintiff’s age and alleged medical conditions,

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together with his failure to respond to the court’s orders, support his continued representation by

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Mr. Fisher at this time.1

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motions to amend the complaint, filed in pro se (ECF Nos. 44-6), are denied

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without prejudice.

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2. Mr. Fisher shall retain his appointment as pro bono counsel for plaintiff, absent further
order of this court.

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3. Discovery may commence in this action, pursuant to the Discovery and Scheduling
Order, filed in tandem with this order.
4. In addition, counsel with the California Attorney General’s Office shall, within

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fourteen days after the filing date of this order, file and serve a statement that updates defense

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counsel’s statement filed July 19, 2013 (ECF No. 43), which indicated that the Office would

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likely accept service of process on behalf of defendant Dr. Bick, upon his anticipated return to the

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United States in late August 2013. Alternatively, within fourteen days, the Office may accept

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service of process in this action on behalf of defendant Dr. Bick.

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SO ORDERED.

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Dated: October 4, 2013

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sykes.2570. cnsl.2

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Should Mr. Fisher seek to withdraw his representation of plaintiff, as he has indicated he may,
the court will consider such request only if another attorney, located by the court, has agreed to
undertake plaintiff’s representation.
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