Mendoza v. C.D.C.R., et al.

Filing 44

ORDER signed by Magistrate Judge Allison Claire on 4/6/2015 GRANTING plaintiff's 43 motion, construed as a request for appointment of counsel; the Clerk shall contact Sujean Park, Alternative Dispute Respolution Coordinator, for the purpose of locating an attorney admitted to practice in this court who is willing to accept this appointment, on plaintiff's behalf through remaining discovery, and all pretrial and trial proceedings; the deadlines for discovery and for filing dispositive motions are VACATED until further order of this court; discovery is hereby STAYED. (cc: ADR)(Yin, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

DANIEL A. MENDOZA,

12

Plaintiff,

13
14

No. 2:13-cv-02366 AC P

v.

ORDER

NEAL P. SWANN, D.D.S.,

15

Defendant.

16
Plaintiff is a state prisoner, incarcerated in Salinas Valley State Prison, who proceeds pro

17
18

se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. This action

19

proceeds against sole defendant Neal P. Swann, D.D.S., on plaintiff’s Eighth Amendment claim

20

that defendant was deliberately indifferent to plaintiff’s serious medical needs concerning his

21

cleft palate surgery and post-operative care, when plaintiff was previously incarcerated at Mule

22

Creek State Prison. Defendant is in private practice in Jackson, California, and presumably

23

provided services to plaintiff pursuant to a contract agreement with the California Department of

24

Corrections and Rehabilitation (CDCR).1 The parties have consented to the jurisdiction of the

25

magistrate judge for all purposes. See 28 U.S.C. § 636(c); Local Rule 305(a). See also ECF Nos.

26

12, 19-2 at 1.

27
28

1

Defendant was represented by private counsel until recently; as of February 23, 2015, defendant
is represented by the California Attorney General’s Office. See ECF No. 42.

1

Currently pending is plaintiff’s form “request for extension” which includes a request for

2

authorization to subpoena plaintiff’s own mental health records from CDCR (because there has

3

reportedly been no response to his request), in order to respond to defendant’s discovery request

4

for “all documents showing [plaintiff was] treated for ‘depression,’ anxiety or suicidal thoughts as

5

a result of March 16, 2012 surgery.” ECF No. 43 at 2. In addition, plaintiff requests

6

authorization for a “subpoena of witnesses . . . there (sic) not voluntorilly (sic).” Id. Plaintiff

7

adds that “[h]ere dental [is] going to examin[e] my teeth & nasal cavity because it will be

8

documented for tri[a]l [drawing of a smiling face]. . . . Dental here did xray there going to examin

9

my teeths & the nasal cavity there’s my evidence. . . .” Id. at 1-2 (sic). The request notes that

10

plaintiff’s prior requests for appointment of counsel, see ECF Nos. 35-6, were denied, see ECF

11

No. 39 at 2-3, as was his request for appointment of an expert witness.

12

Significantly, in further support of his “request for extension,” plaintiff has submitted the

13

results of a March18, 2015 TABE (Tests of Adult Basic Education) test, which accords plaintiff a

14

Total Battery Score of 2.1 (based, in part on a reading level of 3.5 and language level of 1.8). See

15

ECF No. 43 at 4. These results render plaintiff “disabled” under the Americans with Disabilities

16

Act (ADA), entitled to the assistance of CDCR officials in order to effectively communicate with

17

the court. See ECF No. 36 at 6-8; see also ECF No. 35.

18

The court construes plaintiff’s instant request as a renewed request for appointment of

19

counsel. Although district courts lack authority to require counsel to represent indigent prisoners

20

in Section 1983 cases, Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989), when

21

exceptional circumstances are presented, the court may request that an attorney voluntarily

22

represent a civil rights plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015,

23

1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When

24

determining whether “exceptional circumstances” exist, the court must consider plaintiff’s

25

likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro

26

se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970

27

(9th Cir. 2009). The burden of demonstrating exceptional circumstances is on the plaintiff. Id.

28

Circumstances common to most prisoners, such as lack of legal education and limited law library
2

1

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

2

assistance of counsel.

3

In light of the nature and procedural posture of the case, and plaintiff’s limited ability to

4

effectively communicate, the undersigned finds that plaintiff has met his burden of demonstrating

5

exceptional circumstances warranting the appointment of counsel. Comprehensive review of

6

plaintiff’s filings in this action demonstrates that he is not capable of effectively pursuing his own

7

interests in this litigation, which the court has found to be nonfrivolous.

8

In addition, although the undersigned denied plaintiff’s request for appointment of a

9

neutral expert witness, see ECF Nos. 38, 40, plaintiff may, through appointed counsel, request the

10

assistance of a medical expert on his behalf. Voluntary appointed counsel assumes the costs of

11

litigation, including expert fees, on a pro bono basis, and may seek the court’s approval for the

12

reimbursement or advancement of such costs (which must be reimbursed to the court should

13

plaintiff prevail or settle). See General Order No. 510, U.S. District Court, Eastern District of

14

California.

15

Accordingly, having construed plaintiff’s wide-ranging “request for extension” as a

16

renewed motion for appointment of legal counsel, the court finds that plaintiff has met his burden

17

of demonstrating exceptional circumstances warranting such appointment. See General Order

18

No. 230, U.S. District Court, Eastern District of California (setting forth the criteria and

19

procedure for appointment of counsel in Section 1983 cases). Discovery will be stayed in this

20

action pending appointment of counsel, and the deadlines for discovery and dispositive motions

21

will be vacated until further order of this court.

22

Accordingly, IT IS HEREBY ORDERED that:

23

1. Plaintiff’s motion filed April 1, 2015, ECF No. 43, construed as a request for

24
25

appointment of counsel, is granted.
2. The Clerk of Court is directed to contact Sujean Park, Alternative Dispute Resolution

26

Coordinator, for the purpose of locating an attorney admitted to practice in this court who is

27

willing to accept this appointment, for the purpose of pursuing this action on plaintiff’s behalf

28

through remaining discovery, and all pretrial and trial proceedings.
3

1

3. The deadlines for discovery and for filing dispositive motions (currently April 20, 2015

2

and July 20, 2014, respectively, see ECF No. 39) are vacated until further order of this court;

3

discovery is hereby stayed.

4

SO ORDERED.

5

DATED: April 6, 2015

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4