Stephen v. Montejo et al

Filing 110

ORDER signed by Magistrate Judge Deborah Barnes on 1/28/22 GRANTING plaintiff's request to dismiss his claim based on treatment for chronic kidney disease. That claim is dismissed from this action; GRANTING 107 Motion to Stay briefing on plaintiff's motion for summary judgment. Defendant's opposition to plaintiff's motion shall be filed by July 22, 2022 and ; DENYING 108 Motion to Appoint Counsel. (Plummer, M)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

FOR THE EASTERN DISTRICT OF CALIFORNIA

9
10

JIMMIE STEPHEN,

11

Plaintiff,

12
13

No. 2:18-cv-1796 KJM DB P

v.

ORDER

E. MONTEJO,

14

Defendant

15
Plaintiff is a state prisoner proceeding pro se with a civil rights action. He alleges

16
17

defendant was deliberately indifferent to his serious medical needs in violation of the Eighth

18

Amendment. Before the court are plaintiff’s request to dismiss his claim regarding treatment for

19

chronic kidney disease (“CKD”), defendant’s request to stay briefing on plaintiff’s motion for

20

summary judgment, and plaintiff’s request for the appointment of counsel.
DISMISSAL OF CKD CLAIM

21

In his motion for summary judgment, plaintiff states that he is voluntarily dismissing his

22
23

claim regarding treatment for CKD. (ECF No. 105 at 4, 10; see also ECF No. 109 at 3.)

24

Defendant does not oppose dismissal of that claim. Accordingly, plaintiff’s claim regarding the

25

treatment for CKD will be dismissed. This case will proceed solely on plaintiff’s Eighth

26

Amendment claim that defendant was deliberately indifferent in his detection and treatment of

27

plaintiff’s prostate cancer.

28

////
1

1

STAY OF SUMMARY JUDGMENT BRIEFING

2

On December 27, 2021, plaintiff filed a motion for summary judgment.1 (ECF No. 105 at

3

37.) It was filed on the court’s docket on January 3, 2022. Also on January 3, this court issued a

4

Discovery and Scheduling Order. That order set a deadline of April 9, 2022 for the parties to

5

conduct discovery and a deadline of July 22, 2022 for the parties to file any dispositive motions.

6

Defendant seeks an order staying briefing on the summary judgment motion. Defendant

7

argues that he has not had an opportunity to conduct discovery so is unprepared to respond to

8

plaintiff’s motion. Plaintiff objects to defendant’s request. Plaintiff argues that defendant has

9

had adequate time and sufficient funds to prepare to address plaintiff’s one remaining claim.

10

Plaintiff’s motion for summary judgment is premature. The purpose of discovery is to

11

permit the parties to “obtain evidence necessary to evaluate and resolve their dispute.” United

12

States v. Chapman Univ., 245 F.R.D. 646, 648 (C.D. Cal. 2007) (quotation and citation omitted).

13

Neither party had the opportunity to conduct discovery prior to the issuance of the Discovery and

14

Scheduling Order. Accordingly, this court will grant defendant’s motion to stay briefing of

15

plaintiff’s motion for summary judgment. Defendant’s opposition to the motion, and any other

16

dispositive motions, are due for filing no later than July 22, 2022.

17

In his opposition to the motion for a stay, plaintiff also alleges prison staff have pressured

18

him to dismiss this suit and he has suffered disciplinary write-ups in retaliation for refusing to do

19

so. Plaintiff’s allegations do not involve the issue in this case - his medical care by defendant.

20

They will not be addressed here. If plaintiff’s feels his constitutional rights have been violated by

21

other prison staff members, he can certainly use the prison grievance process and, once that

22

avenue is exhausted, the court to seek redress for those injuries.

23

MOTION FOR THE APPOINTMENT OF COUNSEL

24

Plaintiff seeks the appointment of counsel because he is unable to afford counsel, his

25

access to the law library and other resources is limited, and he feels he will need an expert witness

26

if his case goes to trial,

27
28

Under the “mailbox rule,” the court considers the date a prisoner turns over his filing to prison
authorities for mailing as the filing date. See Houston v. Lack, 487 U.S. 266, 270 (1988).
2
1

1

The United States Supreme Court has ruled that district courts lack authority to require

2

counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490

3

U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the

4

voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d

5

1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

6

The test for exceptional circumstances requires the court to evaluate the plaintiff’s

7

likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in

8

light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328,

9

1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances

10

common to most prisoners, such as lack of legal education and limited law library access, do not

11

establish exceptional circumstances that would warrant a request for voluntary assistance of

12

counsel. While the court is not unsympathetic to the difficulties prisoners face in litigating in

13

court, plaintiff appears able to articulate his claims. Further, plaintiff’s problems of library access

14

and hiring experts are faced by most prisoners. They are not unique to plaintiff. Plaintiff has not

15

shown he faces exceptional circumstances that would justify an attempt by this court to locate

16

counsel willing and able to take plaintiff’s case. Plaintiff’s motion will be denied.

17

For the foregoing reasons, IT IS HEREBY ORDERED as follows:

18

1. Plaintiff’s request to dismiss his claim based on treatment for chronic kidney disease is

19

granted. That claim is dismissed from this action.

20

2. Defendant’s motion (ECF No. 107) to stay briefing on plaintiff’s motion for summary

21

judgment is granted. Defendant’s opposition to plaintiff’s motion shall be filed by July 22, 2022.

22
23

3. Plaintiff’s motion for the appointment of counsel (ECF No. 108) is denied.
Dated: January 28, 2022

24
25
26

DLB:9/DB prisoner inbox/civil rights/R/step1796.msj stay

27
28
3