Hollis v. Reisenhoover et al

Filing 74

ORDER DENYING MOTION FOR LEAVE TO FILE AMENDED COMPLAINT; DENYING MOTION FOR LEAVE TO PROCEED WITHOUT PAYMENT OF INITIAL PARTIAL FILING FEE; DENYING MOTION FOR APPOINTMENT OF COUNSEL; DENYING MOTION FOR EXTENSION OF TIME by Judge Beth Labson Freeman.(tshS, COURT STAFF) (Filed on 2/4/2019) (Additional attachment(s) added on 2/4/2019: # 1 Certificate/Proof of Service) (tshS, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MARVIN GLENN HOLLIS,
United States District Court
Northern District of California

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Plaintiff,

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v.

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NURSE REISENHOOVER, et al.,

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Defendants.

Case No. 17-00326 BLF (PR)
ORDER DENYING MOTION FOR
LEAVE TO FILE AMENDED
COMPLAINT; DENYING MOTION
FOR LEAVE TO PROCEED
WTIHOUT PAYMENT OF INITIAL
PARTIAL FILING FEE; DENYING
MOTION FOR APPOINTMENT OF
COUNSEL; DENYING MOTION
FOR EXTENSION OF TIME

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(Docket Nos. 58, 59, 63, 65, 68, 70, 72)

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Plaintiff, a California inmate, filed the instant pro se civil rights action pursuant to

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42 U.S.C. § 1983 against medical officials at Pelican Bay State Prison (“PBSP”).

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Plaintiff’s motion for leave to proceed in forma pauperis was granted in a separate order.1

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Plaintiff has filed several duplicative motions in this matter: motion for leave to file a

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proposed amended complaint, (Docket Nos. 58, 65, 72); motion for appointment of

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counsel, (Docket Nos. 63, 68); motion requesting to proceed without paying initial partial

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filing fee, (Docket No. 59); and a motion for an extension of time to serve Defendant

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The Court determined that although Plaintiff has suffered three strikes under 42 U.S.C. §
1915(g), he was entitled to the “imminent danger of serious physical injury” exception and
permitted him to proceed IFP. (Docket No. 52.)

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McCall, (Docket No. 70). The Court addresses these motions below.
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DISCUSSION
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A.

Motion for Leave to File Amended Complaint

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Plaintiff filed a proposed amended complaint in which he adds two new
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Defendants, Correctional Officers J. Guess and R. Simpson, and new claims against them.
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(Docket No. 20-1.) Plaintiff claims that when he arrived at Pelican Bay State Prison
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(“PBSP”) on January 21, 2016, he was placed in a holding room area in “Receiving &
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Release” where PBSP staff replaced the restraints that he had been transported in with their
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own handcuffs. (Docket No. 20-1 at 8.) Plaintiff immediately informed Defendant Guess,
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United States District Court
Northern District of California

in the presence of Defendant Simpson, that his wrists were in pain and requested that the
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handcuffs be loosened. (Id. at 9.) Plaintiff claims both Defendants refused and then left
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“without any concern for Plaintiff’s pain.” (Id.) Later, he began to have chest pain,
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Plaintiff asked Defendants Guess and Simpson if they could remove his handcuffs so that
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he could take his nitroglycerin medication. (Id. at 10.) Plaintiff claims that they “failed to
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respond and ignored” his pleas for help. (Id.) Plaintiff claims that their failure to respond
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and ignorance of his medical condition was “intentional and purposeful” and caused him to
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suffer “unnecessary prolonged chest pain, elevated blood pressure, nervousness and
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psychologically [sic].” (Id.) Plaintiff claims that he was later taken to the “TTA
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Emergency Room” to receive treatment for his hypertension. (Id. at 11-12.)
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Rule 15(a) of the Federal Rules of Civil Procedure provides different ways to
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amend, and these ways are not mutually exclusive. Ramirez v. Cty. Of San Bernardino,
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806 F.3d 1002, 1007 (9th Cir. 2015). Rule 15(a) provides that a party may amend its
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pleading once as a matter of course, generally, within 21 days after serving it, and that in
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all other cases, a party may amend its pleading only with the opposing party’s written
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consent or the court’s leave. Fed. R. Civ. P. 15(a). Here, because the proposed amended
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complaint was filed over six months after Plaintiff filed the original complaint, he can only
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be seeking leave to amend under the second option, i.e., at the court’s leave.2

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Rule 15(a) is to be applied liberally in favor of amendments and, in general, leave
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shall be freely given when justice so requires. See Janicki Logging Co. v. Mateer, 42 F.3d
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561, 566 (9th Cir. 1994); cf. id. (attempt to amend complaint requiring amendment of
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scheduling order under Fed. R. Civ. P. 16 must be based upon good cause). “‘In the
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absence of any apparent or declared reason–such as undue delay, bad faith or dilatory
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motive on the part of the movant, . . . undue prejudice to the opposing party by virtue of
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allowance of the amendment, futility of amendment, etc.–the leave sought should, as the
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Northern District of California

rules require, be “freely given.”’” Hall v. City of Los Angeles, 697 F.3d 1059, 1073 (9th
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Cir. 2012) (citations omitted).
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Although leave to amend should be freely given, the proposed amended complaint
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improperly joins new claims against new Defendants which are not related to the claims
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against medical personnel that were found cognizable in the original complaint. Plaintiff
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alleged that Defendants Nurse Risenhoover, Dr. Adams, Psychiatrist McCall, and “Psy.
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Technician” Aldafe acted with deliberate indifference to his serious medical needs.
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(Compl. at 4.) Specifically, Plaintiff claims Defendant Risenhoover discontinued several
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prescriptions for medication to treat his chest pain, diabetes, hypertension, and mental
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health, stating that PBSP does not prescribe such medication. (Id. at 6-7.) When Plaintiff
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complained of chest pain, problems with his heart, and extreme pain in his lower back and
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shoulder, these Defendants failed to respond. (Id. at 7.) Plaintiff also claims that
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Defendants McCall and Aldafe discontinued his mental health medication which has
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caused him to suffer psychologically, including depression, anxiety, and symptoms
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Plaintiff has not obtained the opposing party’s written consent.
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associated with bipolar. (Id. at 9-10.)
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“A party asserting a claim, counterclaim, crossclaim, or third-party claim may join,
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as independent or alternative claims, as many claims as it has against an opposing party.”
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Fed. R. Civ. P. 18(a). Accordingly, “multiple claims against a single party are fine, but
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Claim A against Defendant 1 should not be joined with unrelated Claim B against
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Defendant 2.” George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). “Unrelated claims
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against different defendants belong in different suits,” not only to prevent the sort of
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“morass” that a multi-claim, multi-defendant suit can produce, “but also to ensure that
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prisoners pay the required filing fees – for the Prison Litigation Reform Act limits to 3 the
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number of frivolous suits or appeals that any prisoner may file without prepayment of
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required fees.” Id. (citing 28 U.S.C. § 1915(g)).
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Plaintiff’s amended complaint clearly violates Rule 18(a) because he raises new
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claims against newly named Defendants that are based on separate events that took place
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solely on January 21, 2016, when he arrived at PBSP, and are not related to the actions by
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medical personnel at some later time that affected his ongoing medical needs.
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Accordingly, the motion to file an amended complaint is DENIED. (Docket Nos. 58, 65,
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72.) Plaintiff may file the claims against Defendants Guess and Simpson in a separate
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action and be subject to the filing fee. Because the Court has already determined that
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Plaintiff has at least three prior dismissals that count as strikes under § 1915(g), (Docket
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No. 52), he must pay the entire filing fee at the outset of the action. He will only be
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permitted to proceed IFP in the new action if he is able to show that he is entitled to the
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imminent danger of serious physical injury exception. 28 U.S.C. § 1915(g).
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B.

Motion to Proceed Without Paying Initial Partial Filing Fee

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Plaintiff has filed a request to be relieved of paying the initial partial filing fee of
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$32.00 which the Court ordered to be paid when it granted Plaintiff’s IFP motion. (Docket
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No. 59.) The Court ordered that the initial partial filing fee be paid within 28 days from
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the date the order was filed on July 27, 2018. (Docket No. 51.) Plaintiff states that he is
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currently “100% indigent and unable to pay the initial filing fee.” (Docket No. 59.) The
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motion is DENIED as unnecessary. The Court provided instructions to the prison trust
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account office with respect to how payments for the filing fee were to be deducted and
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forwarded to the clerk of the court. (Docket No. 51 at 2.) The instructions specifically
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stated that “[i]f the prisoner does not have sufficient funds in his/her account to pay the
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initial partial filing fee, the prison trust account office should forward the available funds,
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and carry the balance forward each month until the amount is fully paid.” (Id.) These
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instructions are clear and require no further court order.
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United States District Court
Northern District of California

C.

Motion for Appointment of Counsel and Medical Expert

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Plaintiff requests appointment of counsel because the issues are complex, and he
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has limited understanding, education, and lack of skill at law. (Docket No. 63.) He also
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states that he needs legal assistance to locate and serve Defendant McCall. (Id. at 2.) The
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Court notes that recently a request for waiver of service has been sent to Defendant
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McCall’s address listed on the state’s medical board website. (Docket No. 71, 72.)
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Accordingly, assistance of counsel is no longer needed in this regard.
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There is no constitutional right to counsel in a civil case unless an indigent litigant
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may lose his physical liberty if he loses the litigation. See Lassiter v. Dep’t of Social
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Services, 452 U.S. 18, 25 (1981); Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997)
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(no constitutional right to counsel in § 1983 action), withdrawn in part on other grounds
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on reh’g en banc, 154 F.3d 952 (9th Cir. 1998) (en banc). The decision to request counsel
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to represent an indigent litigant under § 1915 is within “the sound discretion of the trial
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court and is granted only in exceptional circumstances.” Franklin v. Murphy, 745 F.2d
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1221, 1236 (9th Cir. 1984). Here, the difficulties Plaintiff raises are no different than those
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any other prisoner faces. Accordingly, Plaintiff’s motion is DENIED without prejudice for
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lack of exceptional circumstances. See Agyeman v. Corrections Corp. of America, 390
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F.3d 1101, 1103 (9th Cir. 2004); Rand, 113 F.3d at 1525 (9th Cir. 1997); Terrell v.
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Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wilborn v. Escalderon, 789 F.2d 1328, 1331
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(9th Cir. 1986). This denial is without prejudice to the Court’s sua sponte appointment of
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counsel at a future date should the circumstances of this case warrant such appointment. If
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counsel is appointed, it is for counsel to decide whether a medical expert should be
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consulted.
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D.

Motion for Extension of Time to Serve Defendant McCall

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Plaintiff requests an extension of time to serve Defendant McCall with this action.
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Northern District of California

(Docket No. 70.) As stated above, the Clerk of the Court recently sent a request for waiver
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of service to Defendant McCall’s address listed on the state’s medical board website.
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(Docket No. 71, 72.) Should this most recent attempt to serve Defendant McCall be
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unsuccessful, the Court will advise Plaintiff of his continued responsibility to obtain a
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relevant address before dismissing Defendant McCall under Rule 4(m). (Docket No. 61.)
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Accordingly, the motion is DENIED as unnecessary.
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CONCLUSION
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For the reasons discussed above, the Court orders as follows:
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Plaintiff’s motions for leave to file a proposed amended complaint, (Docket Nos.
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58, 65, 72), are DENIED to filing the new claims against new Defendants in a separate
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action. Plaintiff’s motions for appointment of counsel and medical expert, (Docket Nos.
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63, 68), are DENIED without prejudice. Plaintiff’s motion to proceed without paying
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initial partial filing fee, (Docket No. 59), and motion for an extension of time to serve
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Defendant McCall, (Docket No. 70), are DENIED as unnecessary.
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This order terminates Docket Nos. 58, 59, 63, 65, 68, 70, and 72.
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IT IS SO ORDERED.
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February 4, 2019
Dated: _____________________

________________________
BETH LABSON FREEMAN
United States District Judge

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United States District Court
Northern District of California

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Order Addressing Pending Motions
PRO-SE\BLF\CR.17\00326Hollis_motions2

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