Mazza v. Austin et al

Filing 26

ORDER signed by Magistrate Judge Allison Claire on 9/30/2014 DENYING plaintiff's 19 motion to amend the complaint, as unnecessary, and plaintiff shall file his amended complaint within 30 days; DENYING plaintiff's 20 motion for appointment of counsel ; DENYING plaintiff's 21 motion for appointment of expert witness; and DENYING plaintiff's 24 motion to dismiss several defendants. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BRYAN EDWARD MAZZA,

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No. 2:14-cv-0874 AC P

Plaintiff,
v.

ORDER

L. AUSTIN, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with this civil rights
action seeking relief pursuant to 42 U.S.C. § 1983.

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On September 24, 2014, plaintiff filed: (1) a motion for leave to amend his complaint; (2)

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his second motion for appointed counsel; (3) his second motion for an appointed expert; and (4) a

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motion to dismiss defendants J. McCue, G. Swarthout, J. Kelso and J. Beard. The motions are

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resolved as follows.

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1. By order dated September 2, 2014, the court dismissed defendants G. Swarthout, J.

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Kelso, J. Beard, A. Pfile and Dr. J. Lipson. In addition, plaintiff was instructed that he could

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submit service documents for defendants L. Austin, Dr. M. Kuersten, Dr. J. McCue, and Dr. R.

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Tan or he could file an amended complaint. ECF No. 15. Rather than choosing either option,

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plaintiff has elected to return some service documents as well as file a motion for leave to amend

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his complaint and a motion to dismiss particular defendants (ECF Nos. 18, 19 & 24). The court
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has already granted plaintiff leave to amend, so no formal motion to amend is necessary.

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Additionally, plaintiff may choose which defendants to proceed against by naming them his

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amended complaint, so no formal motion to dismiss is necessary. Accordingly, the court will

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deny both of these motions as unnecessary but will, sua sponte, grant plaintiff a 30-day extension

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of time to file his amended complaint.

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2. Plaintiff’s second motion to appoint counsel is identical to his first motion to appoint

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counsel, which the court denied (ECF No. 13). This second motion does not assert any change in

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law or facts that could warrant a different result. Accordingly, this motion (ECF No. 20) will be

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denied without prejudice, for the reasons stated in the court’s order denying the earlier motion.

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3. Plaintiff’s second motion to appoint an expert is nearly identical to his first motion to

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appoint an expert, which the court denied (ECF No. 12). The second motion does not assert any

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change in law or facts that would warrant a different result. The second motion does include a

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declaration signed by the plaintiff, however the facts asserted there do not address the basis for

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the court’s denial of the first motion. Accordingly, this motion (ECF No. 21) will be denied

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without prejudice, for the reasons stated in the court’s order denying the earlier motion.

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Accordingly, for the reasons stated above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s Motion To Amend Complaint (ECF No. 19) is DENIED, and plaintiff

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SHALL FILE his amended complaint within 30 days from the date of this order;

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2. Plaintiff’s Motion for Appointment of Counsel (ECF No. 20) is DENIED;

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3. Plaintiff’s Motion for Appointment of Expert Witness (ECF No. 21) is DENIED;

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4. Plaintiff’s Motion to dismiss several defendants (ECF No. 24) is DENIED.

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DATED: September 30, 2014

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