Kessler v. Sacramento City Police Department et al

Filing 12

ORDER signed by Magistrate Judge Allison Claire on 1/18/17 ORDERING that plaintiff's Motion Request for medical records (ECF No. 10 ), is DENIED as moot; The Clerk of the Court shall RETURN plaintiff's medical records, received from the S acramento County Sheriff's Department, to that entity, along with a copy of this order; Plaintiff's Motion Requesting Counsel (ECF No. 11 ), is DENIED without prejudice to its renewal after defendant has appeared and responded to the complaint.(Dillon, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

WESLEY KESSLER,

12
13
14
15
16

No. 2:16-cv-1930 GEB AC (PS)

Plaintiff,
v.

ORDER

SACRAMENTO CITY POLICE
DEPARTMENT OFFICER HIGHT #
0345,
Defendant.

17
18

Plaintiff, an inmate at Sacramento County Rio Cosumnes Correctional Center, is

19

representing himself in this action. Although plaintiff is an inmate, this action does not challenge

20

plaintiff’s conditions of confinement. This proceeding was accordingly referred to the

21

undersigned magistrate judge for pretrial proceedings by E.D. Cal. R. 302(c)(21).
I. MEDICAL RECORDS

22
23

Plaintiff has filed a motion to compel the Sacramento County Sheriff’s Department to

24

release his medical records to the court. ECF No. 10. The undersigned is informed that the

25

Sheriff has released the records and sent them to the Clerk of the Court. The motion will

26

therefore be denied as moot.

27
28

However, it is inappropriate for plaintiff to have his medical records sent to the Clerk’s
Office. The time for the parties to exchange evidence will occur at the “discovery” stage, if the
1

1

litigation reaches that stage. At this stage of the litigation, defendant has not yet made an

2

appearance, and therefore it is premature for plaintiff to be demanding documents from

3

defendant, or otherwise conducting discovery. See Fed. R. Civ. P. 26(a)(1) (initial disclosures

4

and timing), (f) (discovery conference and timing). In addition, the time for the parties to submit

5

evidence and trial exhibits to the court, and the manner for doing so, are set forth in the Federal

6

Rules of Civil Procedure, the Local Rules of this Court, and in a future “Final Pretrial Order,”

7

should the case proceed to that stage. Discovery materials are not routinely filed with the court

8

nor submitted to the Clerk of the Court. See Local Rules 250.1-250.5 (discovery materials not to

9

be filed except as prescribed by the Local Rules).

10

The Clerk of the Court will therefore be instructed to return the medical records to the

11

office which provided them. If this case reaches the discovery stage, and the Sacramento County

12

Sheriff’s Office refuses plaintiff’s request for medical records which plaintiff needs to prosecute

13

this case, plaintiff can file an appropriate motion to compel production of the records to him.

14
15

II. MOTION FOR APPOINTMENT OF ATTORNEY
Plaintiff has moved for appointment of counsel to represent him. ECF No. 11. District

16

courts may not require counsel to represent indigent litigants in § 1983 cases. Mallard v. United

17

States Dist. Court, 490 U.S. 296, 298 (1989). However, where willing counsel is available, the

18

district court “may request an attorney to represent any person unable to afford counsel.” 28

19

U.S.C. § 1915(e)(1); Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir.

20

2004), cert. denied, 545 U.S. 1128 (2005).

21

The district court may appoint such counsel where “exceptional circumstances” exist.

22

Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009), cert. denied, 559 U.S. 906 (2010) (citing

23

Agyeman, 390 F.3d at 1103). In determining whether or not exceptional circumstances exist, “a

24

court must consider ‘the likelihood of success on the merits as well as the ability of the petitioner

25

to articulate his claims pro se in light of the complexity of the legal issues involved.’” Palmer,

26

560 F.3d at 970 (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). Circumstances

27

common to most pro se litigants, such as lack of formal legal education, do not establish

28

exceptional circumstances that would warrant a request for voluntary assistance of counsel.
2

1

Having considered the factors under Palmer, the court finds that plaintiff has failed to

2

meet his burden of demonstrating exceptional circumstances warranting the appointment of

3

counsel at this time. The motion will accordingly be denied without prejudice to its renewal after

4

defendant has appeared and responded to the complaint.

5

III. CONCLUSION

6

For the reasons stated above, IT IS HEREBY ORDERED that:

7

1.

Plaintiff’s “Motion Request” for medical records (ECF No. 10), is DENIED as moot;

8

2.

The Clerk of the Court shall RETURN plaintiff’s medical records, received from the

9
10
11
12

Sacramento County Sheriff’s Department, to that entity, along with a copy of this order;
3.

Plaintiff’s “Motion Requesting Counsel” (ECF No. 11), is DENIED without prejudice to
its renewal after defendant has appeared and responded to the complaint.

DATED: January 18, 2017

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3