Reynoso v. Sayre et al

Filing 32

ORDER by Judge Claudia WilkenORDER DENYING 27 CONTINUANCE; GRANTING 29 LIMITED EXTENSION OF TIME TO OPPOSE MOTION FOR SUMMARY JUDGMENT; GRANTING 16 FILING OF AMENDMENT TO COMPLAINT; DENYING 13 MOTION FOR APPOINTMENT OF COUNSEL; DENYING RULE 35 30 MOTION FOR COURT-ORDERED MEDICAL EXAMINATION. Set Deadlines re motion for summary judgment: Responses due by 3/1/2013. Replies due by 3/15/2013. Set Deadline re motion to compel: Replies due by 1/17/2013. (Attachments: # 1 Certificate/Proof of Service) (ndr, COURT STAFF) (Filed on 1/8/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OMAR REYNOSO,

No. C 11-4525 CW (PR)

Plaintiff,

ORDER DENYING CONTINUANCE;
GRANTING LIMITED EXTENSION OF
v.
TIME TO OPPOSE MOTION FOR
SUMMARY JUDGMENT; GRANTING
CHIEF MEDICAL OFFICER DR. MICHAEL FILING OF AMENDMENT TO
SAYRE, et al.,
COMPLAINT; DENYING MOTION FOR
APPOINTMENT OF COUNSEL; DENYING
Defendants.
RULE 35 MOTION FOR COURT-ORDERED
MEDICAL EXAMINATION
_______________________________/
(Docket nos. 13, 16, 27, 29, 30)

United States District Court
For the Northern District of California

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Pending before the Court are several motions filed by

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Plaintiff in this pro se prisoner civil rights action alleging

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deliberate indifference to his serious medical needs.

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A.

Motions for Continuance and Extension of Time
On December 7, 2012, Defendants filed a motion for summary

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judgment.
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Subsequently, Plaintiff filed a motion to compel

discovery, which Defendants have opposed.

Plaintiff’s opposition

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to the motion for summary judgment is due February 7, 2013; his

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reply to the opposition to the motion to compel is due January 17,

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2013.

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Plaintiff moves for a continuance to file his opposition to

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the motion for summary judgment until resolution of the motion to

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compel and receipt of additional discovery; Defendants have

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opposed the motion.

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arguments, Plaintiff’s motion to continue the date for filing his

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opposition to Defendants’ motion for summary judgment is DENIED,

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as he has not identified any discovery that is essential to

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justify his opposition to the motion for summary judgment.

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Fed. R. Civ. P. 56(d).

The Court having reviewed the parties’

See

If the motion to compel is granted in his

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favor, he may move to file a supplemental opposition to the motion

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for summary judgment.

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Plaintiff’s request for a limited extension of time to file

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his opposition is GRANTED.

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motion for summary judgment by no later than March 1, 2013.

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Defendants shall file a reply no later than fourteen days from the

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date the opposition is filed.

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B.

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He shall file his opposition to the

Motion to Amend Complaint
After Defendants answered the complaint, Plaintiff filed a

United States District Court
For the Northern District of California

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motion to amend the complaint to correct the spelling of the name

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of Defendant Dr. Adams to Dr. Adam, and of potential witness Dr.

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Eccugby to Dr. Ikegbu.

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the complaint is deemed amended with the information detailed in

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the motion.

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C.

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Leave to amend the complaint is GRANTED;

Motion for Appointment of counsel
Plaintiff seeks the appointment of counsel to represent him

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in this action.

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civil case unless an indigent litigant may lose his physical

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liberty if he loses the litigation.

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1520, 1525 (9th Cir. 1997).

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represent an indigent litigant under 28 U.S.C. § 1915 only in

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“exceptional circumstances,” the determination of which requires

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an evaluation of both (1) the likelihood of success on the merits,

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and (2) the ability of the plaintiff to articulate his claims pro

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

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id. at 1525.

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reaching a decision on a request for counsel under § 1915.

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id.

There is no constitutional right to counsel in a

Rand v. Rowland, 113 F.3d

The court may ask counsel to

See

Both of these factors must be viewed together before
See

Here, it is too early in the proceedings for the Court to
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determine Plaintiff’s likelihood of success on the merits and he

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has been able to articulate his claims adequately in light of the

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complexity of the legal issues involved.

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for the appointment of counsel is DENIED without prejudice.

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D.

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Motion for Court-Ordered Medical Examination
Plaintiff has filed a motion for a Court-ordered medical

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examination by a non-prison doctor.

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Procedure 35 provides, in relevant part:

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United States District Court
For the Northern District of California

Accordingly, the motion

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Federal Rule of Civil

The Court where the action is pending may order a party
whose mental or physical condition - including blood
group - is in controversy to submit to a physical or
mental examination by a suitably licensed or certified
examiner.
Fed. R. Civ. P. 35(a)(1).
Plaintiff argues he needs to have an examination by a non-

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prison doctor because of Defendants’ inaccurate medical diagnoses

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and the alleged “hostile environment” that has been created by the

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filing of this lawsuit.

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Rule 35, may, under appropriate circumstances, order a party to

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submit to a physical examination at the request of an opposing

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party, Rule 35 “does not vest the Court with authority to appoint

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an expert to examine a party wishing an examination of himself.”

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Smith v. Carroll, 602 F. Supp. 2d 521, 526 (D. Del. 2009); see,

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e.g., Baker v. Hatch, 2010 WL 3212859, *3 (E.D. Cal. 2010)

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(finding no authority under Rule 35(a) to grant pro se prisoner

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plaintiff’s request for medical examination).

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Plaintiff’s request for a Court-ordered examination by a non-

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prison doctor pursuant to Rule 35 is DENIED.

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precluded, however, from retaining his own expert medical witness

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to examine him and render a medical opinion.

Although a district court, pursuant to

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Accordingly,

Plaintiff is not

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This Order terminates Docket nos. 13, 16, 27, 29 and 30.

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IT IS SO ORDERED.

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Dated: 1/8/2013
CLAUDIA WILKEN
United States District Judge

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United States District Court
For the Northern District of California

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