Rushdan v. Weden, et al

Filing 121

ORDER REOPENING CASE, SETTING BRIEFING SCHEDULE REGARDING PLAINTIFF'S MOTION TO ENFORCE SETTLEMENT AGREEMENT AND FOR CONTEMPT AND DENYING PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL. Signed by Judge Thelton E. Henderson on 01/14/2014. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 1/15/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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No. C-90-2895 TEH (PR)

SALADIN RUSHDAN,
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Plaintiff,
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ORDER REOPENING CASE, SETTING
BRIEFING SCHEDULE REGARDING
PLAINTIFF’S MOTION TO ENFORCE
SETTLEMENT AGREEMENT AND FOR
CONTEMPT AND DENYING
PLAINTIFF’S MOTION FOR
APPOINTMENT OF COUNSEL

v.
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JEFFREY BEARD, DirectorSecretary, California Department
of Corrections and
Rehabilitation,

United States District Court
For the Northern District of California

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Docket nos. 118 and 119.

Defendant.
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Plaintiff Saladin Rushdan, an inmate at California State

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Prison in Corcoran (CSP-Corcoran), has filed a motion to enforce a

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1994 agreement between himself and the Director of the California

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Department of Corrections and Rehabilitation (CDCR)1 to settle his

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claims for deliberate indifference to serious medical needs and

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related claims asserted in the instant case, C-90-2895 TEH (PR).2
He also seeks an order holding the CDCR in contempt for not

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In 1994, this department was known as the California Department
of Corrections (CDC). In the settlement agreement it is referred to
as the CDC. However, the Court will refer to it by its present name,
the California Department of Corrections and Rehabilitation (CDCR).
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Jeffrey Beard, current CDCR Director-Secretary, is substituted
for the former CDCR Director-Secretary. See Will v. Michigan Dep’t
of State Police, 491 U.S. 58, 71 (1989)("[A] suit against a state
official in his or her official capacity is not a suit against the
official but rather is a suit against the official's office”);
Figueroa v. Gates, 120 F. Supp. 2d 917, 920 (C.D. Cal. 2000) (where an
official is replaced during pendency of a suit, it is appropriate to
substitute the name of the replacement in place of the prior official
with regard to the official-capacity basis for suit).

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complying with the terms of the settlement agreement.

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dismissed with prejudice on December 28, 1994, pursuant to the

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settlement agreement.

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This case was

Doc. ## 114-116.

Plaintiff attaches a copy of the settlement agreement to
his motion.

The relevant portions are as follows:

Claimant is to receive medical care for his Keloidal
condition from Dr. Roy C. Grekin, M.D. or from anyone
designated by Dr. Grekin. Dr. Grekin will also prescribe
and/or order medical care for the Claimant to be rendered
by CDCR staff at the California Medical Facility (CMF) in
Vacaville, California. The Chief Medical Officer at CMF
will oversee the medical care prescribed and/or ordered by
Dr. Grekin for the Claimant at CMF for the period to be
prescribed by Dr. Grekin.
1994 Settlement Agreement ¶ 4(a).
Housing: The Claimant is to be housed in a single cell
with a lower bunk for a period not less that fifteen (15)
months commencing the date this agreement is signed.
Further, the Claimant is to be housed at CMF for the
period that he is receiving medical care from Dr. Grekin.
Id. ¶ 4(b).
Implementation of Agreement: The Director of the
California Department of Corrections (hereinafter
“Director”) shall be specifically responsible for the
implementation of the provisions of this Agreement.
Further, in the event that any provision of this agreement
is not implemented, the Claimant may bring an action
against the Director to obtain performance of any of the
provisions of this Agreement.
Id. ¶ 4(d).
In his motion, Plaintiff asserts that his medical
treatment is ongoing to the present and the settlement agreement has
been breached by the following actions:

(1) he has been transferred

to various prisons a number of times, a breach of paragraph 4(b),
which requires that he be housed at CMF for the period he is

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receiving medical care from Dr. Grekin; (2) he has had his medical

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treatment cancelled, delayed and ignored; and (3) his single cell

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status has been revoked, a breach of paragraph 4(b).

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Based on Plaintiff’s representations, this case is re-

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opened and Defendant shall respond to Plaintiff’s motion, in

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accordance with the briefing schedule set forth below.

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II

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Plaintiff moves for appointment of counsel.

The decision

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to request counsel to represent an indigent litigant under § 1915 is

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within "the sound discretion of the trial court and is granted only

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in exceptional circumstances."

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1236 (9th Cir. 1984).

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of the plaintiff seeking assistance requires an evaluation of the

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likelihood of the plaintiff's success on the merits and an

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evaluation of the plaintiff's ability to articulate his claims pro

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se in light of the complexity of the legal issues involved.

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v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir.

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2004).

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Franklin v. Murphy, 745 F.2d 1221,

A finding of the "exceptional circumstances"

Agyeman

Plaintiff’s motion for appointment of counsel is denied

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without prejudice.

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and Defendant has not yet responded, it is too early to determine if

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Plaintiff meets the exceptional circumstances test.

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re-file this motion at a later date and after Defendant responds, if

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he believes his case meets the exceptional circumstances

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requirement.

Because this case is only now being re-opened

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Plaintiff may

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III

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Based upon the foregoing, the Court orders the following:

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1. The Clerk of the Court shall re-open this case.

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2. Plaintiff’s motion for appointment of counsel is denied

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without prejudice.

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Doc. #118.

3. This Order, together with Plaintiff’s motion and the

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accompanying exhibits, doc. #119, shall be served on Defendant, and

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copies shall be mailed to the State Attorney General's Office in San

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Francisco.

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Additionally, the Clerk shall mail a copy of this Order

to Plaintiff.

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4. Within twenty-eight days from the date of this Order,

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Defendant shall respond to Plaintiff’s motion to enforce the

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settlement agreement and for contempt.

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include any relevant documenation and declarations.

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file a reply within fourteen days thereafter, also including any

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relevant documentation and declarations.

Defendant’s response shall
Plaintiff may

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5. This matter shall be decided on the papers.

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Court determines that a hearing is required, it shall so inform the

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parties.

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If the

IT IS SO ORDERED.

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DATED

01/14/2014
THELTON E. HENDERSON
United States District Judge

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