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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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 5 6 7 8 9 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 10 11 Pending before the Court are several motions filed by 12 Plaintiff in this pro se prisoner civil rights action alleging 13 deliberate indifference to his serious medical needs. 14 A. Motions for Continuance and Extension of Time On December 7, 2012, Defendants filed a motion for summary 15 judgment. 16 Subsequently, Plaintiff filed a motion to compel discovery, which Defendants have opposed. Plaintiff’s opposition 17 to the motion for summary judgment is due February 7, 2013; his 18 reply to the opposition to the motion to compel is due January 17, 19 2013. 20 Plaintiff moves for a continuance to file his opposition to 21 the motion for summary judgment until resolution of the motion to 22 compel and receipt of additional discovery; Defendants have 23 opposed the motion. 24 arguments, Plaintiff’s motion to continue the date for filing his 25 opposition to Defendants’ motion for summary judgment is DENIED, 26 as he has not identified any discovery that is essential to 27 justify his opposition to the motion for summary judgment. 28 Fed. R. Civ. P. 56(d). The Court having reviewed the parties’ See If the motion to compel is granted in his 1 favor, he may move to file a supplemental opposition to the motion 2 for summary judgment. 3 Plaintiff’s request for a limited extension of time to file 4 his opposition is GRANTED. 5 motion for summary judgment by no later than March 1, 2013. 6 Defendants shall file a reply no later than fourteen days from the 7 date the opposition is filed. 8 B. 9 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 10 motion to amend the complaint to correct the spelling of the name 11 of Defendant Dr. Adams to Dr. Adam, and of potential witness Dr. 12 Eccugby to Dr. Ikegbu. 13 the complaint is deemed amended with the information detailed in 14 the motion. 15 C. 16 Leave to amend the complaint is GRANTED; Motion for Appointment of counsel Plaintiff seeks the appointment of counsel to represent him 17 in this action. 18 civil case unless an indigent litigant may lose his physical 19 liberty if he loses the litigation. 20 1520, 1525 (9th Cir. 1997). 21 represent an indigent litigant under 28 U.S.C. § 1915 only in 22 “exceptional circumstances,” the determination of which requires 23 an evaluation of both (1) the likelihood of success on the merits, 24 and (2) the ability of the plaintiff to articulate his claims pro 25 se in light of the complexity of the legal issues involved. 26 id. at 1525. 27 reaching a decision on a request for counsel under § 1915. 28 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 2 1 determine Plaintiff’s likelihood of success on the merits and he 2 has been able to articulate his claims adequately in light of the 3 complexity of the legal issues involved. 4 for the appointment of counsel is DENIED without prejudice. 5 D. 6 Motion for Court-Ordered Medical Examination Plaintiff has filed a motion for a Court-ordered medical 7 examination by a non-prison doctor. 8 Procedure 35 provides, in relevant part: 9 10 United States District Court For the Northern District of California Accordingly, the motion 11 12 13 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- 14 prison doctor because of Defendants’ inaccurate medical diagnoses 15 and the alleged “hostile environment” that has been created by the 16 filing of this lawsuit. 17 Rule 35, may, under appropriate circumstances, order a party to 18 submit to a physical examination at the request of an opposing 19 party, Rule 35 “does not vest the Court with authority to appoint 20 an expert to examine a party wishing an examination of himself.” 21 Smith v. Carroll, 602 F. Supp. 2d 521, 526 (D. Del. 2009); see, 22 e.g., Baker v. Hatch, 2010 WL 3212859, *3 (E.D. Cal. 2010) 23 (finding no authority under Rule 35(a) to grant pro se prisoner 24 plaintiff’s request for medical examination). 25 Plaintiff’s request for a Court-ordered examination by a non- 26 prison doctor pursuant to Rule 35 is DENIED. 27 precluded, however, from retaining his own expert medical witness 28 to examine him and render a medical opinion. Although a district court, pursuant to 3 Accordingly, Plaintiff is not 1 This Order terminates Docket nos. 13, 16, 27, 29 and 30. 2 IT IS SO ORDERED. 3 4 Dated: 1/8/2013 CLAUDIA WILKEN United States District Judge 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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