Daniels v. Arnold

Filing 56

ORDER signed by Magistrate Judge Allison Claire on 6/08/20 DENYING 53 Motion to Appoint Counsel and DENYING 55 Plaintiffs motion for an order directing the United States Marshal to serve plaintiffs proposed subpoenas duces tecum. The motion is : (a) denied without prejudice as to defendantLotersztain, subject to the directive below; (b) denied without prejudice to the custodian of CSPSOLs prison medical records (currently Mr. Marc Weeks); and (c) denied with prejudice as to the California Me dical Board. Plaintiffs motion directed to defendant Lotersztain is construed, in part, as a motion tocompel discovery under Rule 37, Federal Rules of Civil Procedure; so construed, defense counsel shall, within fourteen (14) days after the filing da te of this order, provide plaintiff with a copy of his medical records as independently obtained by defendant, and shall file and serve a statementreflecting such production. This order shall serve as substantiation to prison officials that plaintiffs medical records are relevant to the instant legal proceeding which has a discovery deadline of July 31, 2020. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TED DARNELL DANIELS,

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No. 2:16-cv-0551 KJM AC P

Plaintiff,
v.

ORDER

ERIC ARNOLD, et al.,

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Defendants.

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I.

Introduction

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Plaintiff is a state prisoner incarcerated at California State Prison Solano (CSP-SOL),

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proceeding pro se and in forma pauperis with this civil rights action filed pursuant to 42 U.S.C. §

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1983. This order addresses plaintiff’s request that the United States Marshal personally serve his

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proposed subpoenas duces tecum, and plaintiff’s request for appointment of counsel. For the

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reasons set forth below, both motions are denied without prejudice but counsel for defendant

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Lotersztain is directed to provide plaintiff with a copy of his medical records that defendant

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independently subpoenaed.

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II.

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By order filed April 30, 2020, this court granted plaintiff’s request for three signed

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Request for Service of Subpoenas Duces Tecum

subpoena forms, and informed plaintiff of the showing he must make to obtain the assistance of

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the United States Marshal in serving the completed subpoenas. ECF No. 52. In response,1

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plaintiff filed one completed subpoena that seeks a full copy of his medical records, which were

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previously obtained by counsel for defendant Dr. Mariana Lotersztain,2 Deputy California

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Attorney General Amie McTavish (hereafter “defense counsel”). Plaintiff requests that the

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subpoena be served on: (1) defendant Lotersztain, through defense counsel, id., and (2) Mr. Marc

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A. Weeks, Supervisor HRT II, CSP-SOL Health Records Unit. Id. at 7; see also ECF No. 51.

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Plaintiff also requests issuance of a subpoena on the California Medical Board to obtain any

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evidence that defendant Lotersztain has been professionally disciplined.

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The extended discovery deadline in this case is now July 31, 2020. ECF No. 49. Due to

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this extended time, plaintiff’s prior motion for discovery was denied without prejudice. ECF No.

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52. As plaintiff was previously informed, to obtain service of a proposed subpoena by the U.S.

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Marshal, a pro se plaintiff must clearly identify the proposed recipient and the requested

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documents, and must demonstrate that the requested documents are relevant to the issues in the

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case and obtainable through the person subpoenaed. ECF No. 52 at 2 (citing Fed. R. Civ. P. 45).

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Review of plaintiff’s prior filings demonstrates that he has been attempting for some time

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to obtain a complete copy of his medical records from defense counsel, as well as to obtain an

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Olson review3 of his medical records. See ECF Nos. 48, 51. In response to plaintiff’s second

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request for production propounded on defendant Lotersztain, ECF No. 51 at 13-7, defense

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counsel responded in part that she would provide plaintiff with a copy of his medical records, id.

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at 27-9, a representation plaintiff has acknowledged, id. at 2:4. However, the status of this

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production remains unclear.

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Plaintiff’s request from defendant for a copy of his medical records, which were

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Plaintiff’s request for service of his proposed subpoenas duces tecum and supporting
documents are not on the court’s docket but have been submitted only for this court’s
consideration.
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Findings and Recommendations are pending that recommend the dismissal of all other
defendants in this action. See ECF No. 27.
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An Olson review refers to the right of California inmates to inspect and copy non-confidential
records maintained in their central and medical files, as established by In re Olson, 37 Cal. App.
3d 783 (1974).
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independently subpoenaed by defense counsel, was properly made in his second production

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request pursuant to Rule 34, Federal Rules of Civil Procedure. In contrast, subpoenas under Rule

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45, Federal Rules of Civil Procedure, are intended for nonparties. See Fed. R. Civ. P. 34(c).

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Therefore, plaintiff’s proposed Rule 45 subpoena is inappropriately directed to defendant

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Lotersztain and will be denied on that basis.

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However, in light of defense counsel’s agreement to provide plaintiff with a copy of his

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medical records, the court will, in part, construe the instant motion as a motion to compel

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discovery pursuant to Rule 37, Federal Rules of Civil Procedure. Defense counsel will be

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directed to provide plaintiff with a complete copy of his medical records, as obtained by

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defendant, within fourteen days after the filing date of this order, and to file and serve a statement

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of compliance. If the records were previously produced to plaintiff, defense counsel shall so

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state.

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Plaintiff has also actively sought an Olson review of his medical records, and has

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corresponded directly with Marc Weeks, Supervisor HRT II in the CSP-SOL Health Records

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Unit. See e.g. ECF No. 48 at 6-19; ECF No. 51 at 13-23, 33-5. Plaintiff’s exhibits indicate that

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the most recent correspondence was plaintiff’s April 10, 2020 response to Weeks’ April 2, 2020

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memorandum announcing a temporary suspension of Olson reviews of healthcare records due to

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the current COVID-19 health crisis unless an inmate can show, with “substantiation,” that the

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records are needed “urgently for a legal matter.” See ECF No. 51 at 33-5 (includes plaintiff’s

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March 3, 2020 request); ECF No. 48 at 14. Plaintiff’s response noted the instant legal proceeding

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and was forwarded to Weeks on April 13, 2020. ECF No. 51 at 35. It remains unclear whether

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plaintiff has obtained access to his medical records through an Olson review.

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As a general rule, the court will not issue a subpoena for a prisoner’s prison medical or

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other records unless he has demonstrated an inability to obtain them through regular prison

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procedures. See e.g. Glass v. Diaz, 2007 WL 2022034, at *4, 2007 U.S. Dist. LEXIS 53535

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(E.D. Cal. July 9, 2007) (where prison medical records are “equally available to plaintiff, plaintiff

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must attempt to obtain them through the proper prison channels” before seeking court

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intervention based on a “showing that he has been unable to obtain these records on his own”);
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Valenzuela v. Smith, 2006 WL 403842, at *2, 2006 U.S. Dist. LEXIS 6078 (E.D. Cal. Feb. 16,

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2006) (“[d]efendants cannot be compelled to produce documents . . . that are equally available to

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plaintiff in his prison medical file”); Singleton v. Hedgepath, 2011 WL 1806515, at *8 (E.D. Cal.

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May 10, 2011) (denying plaintiff’s motion to compel defendants’ production of documents from

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his prison file because the documents were “equally accessible to both parties”); Cortinas v.

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Huerta, 2019 WL 6050833, at *4, 2019 U.S. Dist. LEXIS 198712 (E.D. Cal. Nov. 15, 2019)

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(declining to compel defendants to produce plaintiff’s prison medical records without a showing

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of plaintiff’s “efforts to request and access these files through an Olson review or a subpoena

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duces tecum”).

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Thus, a subpoena may be served on Mr. Weeks only upon a showing that plaintiff’s

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efforts to review and copy his medical records through regular prison procedures have been

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unsuccessful. See id. Although plaintiff has submitted numerous exhibits demonstrating such

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efforts, it is plaintiff’s responsibility to clearly identify the chronology and substance of these

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efforts, including the precise medical records sought, the responses plaintiff received, and

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whether plaintiff has exhausted all available procedures. For example, although plaintiff’s

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proposed subpoena to Mr. Weeks generally seeks “medical records” in his possession

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“concerning” plaintiff, his most recent correspondence with the CSP-SOL HRT (effectively Mr.

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Weeks) indicates that plaintiff is seeking limited medical records. See ECF No. 51 at 33. Due to

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the lack of clarity regarding plaintiff’s efforts, the responses he received and the precise medical

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records he continues to seek, his request for service of a subpoena on Mr. Marc Weeks will be

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denied without prejudice.

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Nevertheless, in light of the temporary suspension of Olson review requests at CSP-SOL

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due to the COVID-19 pandemic, this order shall serve as further substantiation that plaintiff’s

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medical records are relevant to the instant legal proceeding which has a discovery deadline of

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July 31, 2020.

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Finally, plaintiff’s proposed subpoena directed to the California Medical Board does not

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meet the threshold requirements of relevance and unavailability by other means. Defendant

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Lotersztain’s professional disciplinary history, if any, is not relevant to the quality of medical care
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she provided plaintiff. Moreover, some such information is publicly available by a search of

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defendant’s name on the Board’s website4 and through further inquiry by telephone or letter.5

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Indeed, it appears that plaintiff has made such an inquiry in letter form. See ECF No. 51 at 10.

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For these reasons, plaintiff’s request for service of a subpoena on the California Medical Board

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will be denied.

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III.

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Plaintiff also requests appointment of counsel, particularly to assist him in obtaining

Request for Appointment of Counsel

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discovery if the court rejects plaintiff’s proposed subpoenas. ECF No. 53. Plaintiff argues, inter

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alia, that appointed counsel could retain a medical expert who would address the complex

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medical issues in this case concerning the use of topical steroids. Plaintiff also notes that he is

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facing a potential dispute concerning his current prescription for topical steroids. In addition,

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plaintiff notes his indigence and lack of access to the prison law library due to the current

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COVID-19 health crisis. This is plaintiff’s first request for appointment of counsel.

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District courts are without authority to require an attorney to represent an indigent

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prisoner in a civil rights case. Mallard v. United States District Court, 490 U.S. 296, 298 (1989)

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Although the district court may request the voluntary assistance of counsel pursuant to 28 U.S.C.

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§ 1915(e)(1), this is appropriate only in certain “exceptional circumstances.” Terrell v. Brewer,

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935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir.

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1990). When determining whether “exceptional circumstances” exist, the court must consider

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

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in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th

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

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

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access, do not establish exceptional circumstances supporting appointment of counsel. Id.

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See https://www.mbc.ca.gov/Breeze/License_Verification.aspx City of Sausalito v. O’Neill,
386 F.3d 1186, 1224 n.2 (9th Cir. 2004) (“We may take judicial notice of a record of a state
agency not subject to reasonable dispute.”); see also Fed. R. Evid. 201 (this court may take
judicial notice of facts that are capable of accurate determination by sources whose accuracy
cannot reasonably be questioned).
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See https://www.mbc.ca.gov/Consumers/Public_Disclosure.aspx
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In the present case, the court does not find the required exceptional circumstances at this

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time. Proceeding pro se, plaintiff has propounded detailed and substantive discovery requests on

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defendant, while also independently pursuing the information he seeks through an Olson review

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and from the California Medical Board. Appointed counsel would not be of significant assistance

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in the discovery process, and whether appointed counsel could obtain the court’s approval for

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expert witness fees is not a foregone conclusion. Moreover, as plaintiff himself notes, “this case

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involves simple and straightforward facts concerning two distinct acts of ‘Deliberate

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Indifference[.]’ Plaintiff [has] these certain specific time[s] and date[s] when he was prescribed

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treatment with Prednisolone corticosteroid and the time[s] and [date[s] he did not.” ECF No. 53

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at 1. Hence, while it is not possible at this juncture to assess plaintiff’s likelihood of success on

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the merits of his claims, he has demonstrated that he is capable of articulating and pursing his

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claims pro se in light of the complexity of the legal issues involved. Therefore, plaintiff’s instant

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motion for appointment of counsel will be denied without prejudice.

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IV.

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Accordingly, for the foregoing reasons, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for an order directing the United States Marshal to serve plaintiff’s

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proposed subpoenas duces tecum, ECF No. 55, is: (a) denied without prejudice as to defendant

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Lotersztain, subject to the directive below; (b) denied without prejudice to the custodian of CSP-

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SOL’s prison medical records (currently Mr. Marc Weeks); and (c) denied with prejudice as to

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the California Medical Board.

Conclusion

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2. Plaintiff’s motion directed to defendant Lotersztain is construed, in part, as a motion to

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compel discovery under Rule 37, Federal Rules of Civil Procedure; so construed, defense counsel

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shall, within fourteen (14) days after the filing date of this order, provide plaintiff with a copy of

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his medical records as independently obtained by defendant, and shall file and serve a statement

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reflecting such production.

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3. Plaintiff’s motion for appointment of counsel, ECF No. 53, is denied without
prejudice.
4. This order shall serve as substantiation to prison officials that plaintiff’s medical
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records are relevant to the instant legal proceeding which has a discovery deadline of July 31,

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2020.

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IT IS SO ORDERED.
DATED: June 8, 2020

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