Thomas v. Guffey, et al

Filing 84

ORDER signed by Magistrate Judge Kendall J. Newman on 4/28/2015 ORDERING Plaintiff's 65 motion for a court order for legal documents is DENIED; Plaintiff's 77 motion for appointment of counsel is DENIED; Plaintiff's 79 motion to compel regarding his subpoena is DENIED; the Clerk of the Court is directed to issue one blank subpoena to plaintiff; within 14 days of the date of this order, plaintiff shall send the completed subpoena to the US Marshal's Office, Sacramento, CA, within that time, plaintiff shall also file a notice with the court indicating that he sent the subpoena to the USM at this address; the Clerk of the Court is directed to serve a copy of this order on the USM; Plaintiff's 75 request for assistance in serving subpoenas is DENIED; plaintiff shall follow the deadlines set forth in this order regarding his request for an Olsen review. (cc: USM, Subpoena to Pltf)(Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JASON LATRELL THOMAS,

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No. 2:14-cv-0066 JAM KJN P

Plaintiff,

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v.

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GUFFEY, et al.,

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ORDER

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. Several matters are pending before the court.

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Motion for Documents

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On March 23, 2015, plaintiff filed a motion stating that he was put up for transfer to the

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Department of State Hospitals within seven days. (ECF No. 65.) Plaintiff alleges that under the

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rules of the California Department of Corrections and Rehabilitation (“CDCR”), his legal

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property will not be transferred to the state hospital unless he has an active case pending in the

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courts. Plaintiff requests that the court direct prison officials to transfer his legal property with

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him to the state hospital.

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On April 13, 2015, plaintiff filed a notice of change of address indicating that he has been

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transferred to the California Medical Facility (“CMF”). (ECF No. 74.) Because plaintiff was not

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transferred to a state hospital, his request for a court order directing prison officials to transfer his
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legal property to a state hospital is moot.

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Motion for Appointment of Counsel

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On April 20, 2015, plaintiff filed a motion for the appointment of counsel. (ECF No. 77.)

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District courts lack authority to require counsel to represent indigent prisoners in section 1983

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cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional

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circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28

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U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v.

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Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional

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circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as

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well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the

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legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not

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abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional

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circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of

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legal education and limited law library access, do not establish exceptional circumstances that

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warrant a request for voluntary assistance of counsel.

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Plaintiff alleges that he is now housed at CMF where he is being forced to take

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psychotropic medication. Plaintiff alleges that he will have limited access to legal supplies.

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Plaintiff also alleges that his legal property will not follow him unless he notifies prison officials

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that he has an active case.

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In the motion for appointment of counsel, plaintiff does not allege that he is presently

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being denied access to his legal property. The undersigned also observes that on April 20, 2015,

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plaintiff filed two, albeit brief, motions to compel. (ECF No. 78, 79.)

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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 at this time. Accordingly, plaintiff’s motion for appointment of counsel is denied.

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Motion to Compel re: Subpoena

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On March 13, 2015, the undersigned granted plaintiff’s motion for issuance of subpoenas.

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(ECF No. 63.) In particular, the undersigned directed the United States Marshal to assist plaintiff
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in serving his subpoena directed to the Office of Internal Affairs. Plaintiff was directed to send

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his completed subpoena to the United States Marshal’s Office, 501 I Street, Sacramento

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California, 95814, which thirty days.

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In the pending motion to compel, plaintiff alleges that he has not received a response to
the subpoena he submitted for service to the United States Marshal. (ECF No. 79.)

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On March 23, 2015, plaintiff filed a notice with the court stating that he had submitted his

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subpoena for service. (ECF No. 64.) This notice states that he mailed his subpoena to the United

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States Marshal’s Office. The United States Marshal’s Office has informed the court that they did

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not receive any subpoena from plaintiff. Accordingly, plaintiff is directed to resubmit the

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subpoena to the United States Marshal.

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Request for Assistance in Serving Subpoena

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On April 13, 2015, plaintiff filed a motion requesting the court’s assistance in serving

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subpoena’s on California State Prison-Corcoran Medical/Mental Health Chief of Staff. (ECF No.

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75.) Plaintiff alleges that in October and November 2014, he made numerous requests to

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California State Prison-Sacramento to produce his medical records pursuant to an Olsen review.

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In December 2014 and January 2015, plaintiff alleges that he made the same request to prison

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officials at California State Prison-Corcoran. Plaintiff indicates that he did not receive the

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requested Olsen reviews. Plaintiff requests that the court assist him in serving a subpoena to

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obtain these documents.

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Plaintiff is now housed at CMF, where his medical records are presumably located.

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Plaintiff is directed to submit a request for an Olsen review to prison officials at CMF within ten

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days. If plaintiff does not receive a response to his request for an Olsen review within thirty days

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from the date of this order, he shall notify the court. In this notification, plaintiff shall include

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information regarding when he submitted his request for an Olsen review, to whom he submitted

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the request, and any response he received from prison officials.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for a court order for legal documents (ECF No. 65) is denied;

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2. Plaintiff’s motion for appointment of counsel (ECF No. 77) is denied;
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3. Plaintiff’s motion to compel regarding his subpoena (ECF No. 79) is denied;

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4. The Clerk of the Court is directed to issue one blank subpoena to plaintiff;

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5. Within fourteen days of the date of this order, plaintiff shall send the completed

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subpoena to the United States Marshal’s Office, 501 I Street, Suite 5600, Sacramento, California,

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95814; within that time, plaintiff shall also file a notice with the court indicating that he sent the

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subpoena to the United States Marshal at this address;

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6. The Clerk of the Court is directed to serve a copy of this order on the United States
Marshal;
7. Plaintiff’s request for assistance in serving subpoenas (ECF No. 75) is denied; plaintiff

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shall follow the deadlines set forth in the order above regarding his request for an Olsen review.

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Dated: April 28, 2015

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Thom66.clp
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