Millare v. Gonzales et al

Filing 81

ORDER: Denying 73 Motion to Appoint Counsel; (2) Denying 75 Motion for Expert Witness (3) Regarding Plaintiff's Motion to Compel a More Definite Answer; and (4) Sua Sponte Extending the Time for Plaintiff to Provide Subpoena. Signed by Magistrate Judge Nita L. Stormes on 4/27/2017.(All non-registered users served via U.S. Mail Service)(ag)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 SOUTHERN DISTRICT OF CALIFORNIA 6 7 Plaintiff, 8 9 10 Case No.: 16cv487 MMA (NLS) MORIANO MILLARE, ORDER: v. 26 27 (1) DENYING MOTION FOR APPOINTMENT OF COUNSEL [Dkt. No. 73]; L. GONZALES, Correctional Officer; H. ASBURY, Manager/Supervisor; R. EBALO, Registered Nurse; G. CASIAN, Physician; A. JAMES, Vocational Nurse; S. PUCKETT, Registered or Vocational Nurse; G. WILEY, Nurse Practitioner; D. McARTHUR, Registered Nurse; M. HODGESON, Radiology Technician; A. CASTRILLON, Radiology Technician; DOE 1, Director of Radiological Services; S. ROBERTS, Chief Medical Executive; L. CIBROWSKI, Manager/Supervisor; P. H. BRACAMONTE, Manager Supervisor; DOE 2, Health Care Manager; DOE 3, Chief Medical Officer; DOE 4, Health Care Standards Compliance Coordinator; DOE 5, Correctional Health Services Administrator; DOE 6, Supervising Registered Nurse; DOE 7, Associate Warden, Health Care Operations; R. OLSEN, Appeals Coordinator; J. RAMIREZ, Appeals Coordinator; DOE 8, Manager/Supervisor Associate Warden; DOE 9, Manager Supervisor Chief Deputy Warden, Defendants. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (2) DENYING MOTION FOR EXPERT WITNESS [Dkt. No. 75]; (3) REGARDING PLAINTIFF’S MOTION TO COMPEL A MORE DEFINITE ANSWER; and (4) SUA SPONTE EXTENDING THE TIME FOR PLAINTIFF TO PROVIDE SUBPOENA TO THE U.S. MARSHAL. 28 1 16cv487 MMA (NLS) 1 Plaintiff Moriano Millare, a California inmate proceeding pro se and in forma 2 pauperis (IFP), filed suit under 42 U.S.C. § 1983 alleging various violations by multiple 3 defendants of his civil rights. Most of the claims revolve around Millare being allegedly 4 exposed to radiation during x-ray examinations, being assigned to a top bunk even though 5 he had a pre-existing broken leg and neck and back pain, and excessive force used on him 6 in connection with his attendance at medical appointments. Millare recently filed 7 multiple motions; the court addresses each in turn below. 8 I. 9 Millare asks this court to appoint counsel for these reasons: (1) he cannot afford Motion for Appointment of Counsel. 10 counsel; (2-4) the issues are complex; (5-6) he has limited access to scientific facts 11 regarding radiation and dermatology; (7) Defendants continue to perform x-rays on him; 12 (8-10) defendants Ciborowski and Wiley have yet to be served, Ramirez was only 13 recently served, and extensive discovery remains to be taken on these three Defendants; 14 (11-13) Plaintiff says he needs to use expert witnesses and take depositions; and (14) 15 Plaintiff intends to amend the complaint. 16 To address some of these points, defendant Cibrowski was served on April 11, 17 2017 [Dkt. No. 77] and the court has taken steps to facilitate service of the complaint on 18 defendant Wiley [Dkt. No. 71 and section IV below]. The remaining relevant points for 19 requesting counsel are that Plaintiff is indigent and the issues are complex and require 20 extensive discovery. 21 22 A. Legal Standard. The Constitution provides no absolute right to the appointment of counsel in any 23 civil proceeding. Hedges v. Resolution Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994). 24 In pro se and in forma pauperis proceedings, district courts do not have the authority “to 25 make coercive appointments of counsel.” Mallard v. United States District Court, 490 26 U.S. 296, 310 (1989). But they do have the discretion to request that an attorney 27 represent an indigent civil litigant upon a showing of “exceptional circumstances.” 28 28 U.S.C. § 1915(e)(1); Agyeman v. Corrections Corp. Of America, 390 F.3d 1101, 1103 2 16cv487 MMA (NLS) 1 2 (9th Cir. 2004). A finding of exceptional circumstances “requires an evaluation of both the 3 likelihood of success on the merits and the ability of the [plaintiff] to articulate his claims 4 pro se in light of the complexity of the legal issues involved.” Wilborn v. Escalderon, 5 789 F.2d 1328, 1331 (9th Cir. 1986), quoting Weygandt v. Look, 718 F.2d 952, 954 (9th 6 Cir. 1983). Neither of the Wilborn factors are dispositive, and they must be viewed 7 together before the district court reaches its decision. Id. 8 9 10 B. Discussion. 1. Likelihood of Success on the Merits. A plaintiff that provides no evidence of his likelihood of success at trial fails to 11 satisfy the first factor of the Wilborn test. Bailey v. Lawford, 835 F. Supp. 550, 552 (S.D. 12 Cal. 1993). Here, there is very little before the court regarding the merits of Plaintiff’s 13 case, other than the assertions in the complaint and this motion. As a result, it is difficult 14 at this time to determine the likelihood that Plaintiff will succeed on the merits. 15 Therefore, Plaintiff fails to satisfy the first Wilborn factor. 16 17 2. Plaintiff’s Ability to Articulate His Claims. Where a pro se civil rights plaintiff shows he has a good grasp of basic litigation 18 procedure and has articulated his claims adequately, he does not demonstrate the 19 exceptional circumstances required for the appointment of counsel. See Palmer v. 20 Valdez, 560 F.3d 965, 970 (9th Cir. 2009). As another court in this district noted, there is 21 “no doubt [that] most pro se litigants find it difficult to articulate their claims and would 22 be better served with the assistance of counsel.” Garcia v. Cal. Dep’t of Corrections & 23 Rehab., 2013 WL 485756, at *1 (S.D. Cal. Feb. 6, 2013). But it is for this reason that 24 federal courts employ procedures that protect a pro se litigant’s rights. See Haines v. 25 Kerner, 404 U.S. 519, 520 (1972). In pro se civil rights cases, a court must construe the 26 pleadings liberally and afford the plaintiff any benefit of the doubt. Karim-Panahi v. Los 27 Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). Thus, where a pro se plaintiff 28 can articulate his claims in light of their relative complexity, there are no exceptional 3 16cv487 MMA (NLS) 1 circumstances to justify appointment of counsel. Garcia, 2013 WL 485756, at *1, citing 2 Wilborn, 789 F.2d at 1331. 3 The purported complexity of this case and required use of experts have not 4 prevented Plaintiff from articulating his claims thus far. This court reviewed Plaintiff’s 5 complaint and finds that the issues he raises are not particularly complex. The court 6 understands his claims and the relief sought. Plaintiff also demonstrated that he has a 7 good grasp on basic litigation procedure, as evidenced by the pleadings and 16 motions 8 he has filed with this court thus far, some of which have been granted. 9 The court finds that Plaintiff has sufficiently put on his case thus far in light of the 10 complexity of the legal issues involved. As for his argument that he lacks funds and 11 needs counsel to work with expert witnesses to prepare this case for trial, such an issue is 12 common to most prisoners, and does not amount to exceptional circumstances. See, e.g., 13 Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990) (denying appointment of 14 counsel where plaintiff complained that he had limited access to law library and lacked a 15 legal education). 16 C. Conclusion and Order. 17 Viewing the Wilborn factors together, Plaintiff has not shown a likelihood of 18 success on the merits of his case or that he cannot articulate his claims and litigate this 19 action pro se. Therefore, Plaintiff has not established the exceptional circumstances 20 required for the appointment of counsel pursuant to 28 U.S.C. Section 1915(e)(1). 21 22 The court, therefore, DENIES without prejudice Plaintiff’s motion for appointment of counsel. 23 II. 24 Millare asks this court to appoint an expert witness to help the trier of fact Motion for Expert Witness. 25 understand the evidence and determine the facts at issue regarding his claims and 26 purported suffering of skin damage, thinning, scars, an enduring itch, and intentional 27 exposure to radiation by failure to use a lead blanket during x-ray procedures. 28 /// 4 16cv487 MMA (NLS) 1 A. Legal Standard. 2 An expert witness may testify to help the trier of fact determine the evidence or a 3 fact at issue. Fed. R. Evid. 702. A court has full discretion to appoint an expert witness 4 either by its own motion or by a party’s motion. Fed. R. Evid. 706(a); McKinney v. 5 Anderson, 924 F.2d 1500, 1510-11 (9th Cir. 1991), overruled on other grounds by 6 Helling v. McKinney, 502 U.S. 903 (1991). Appointment of an expert witness may 7 generally be appropriate when “scientific, technical, or other specialized knowledge will 8 assist the trier of fact to understand the evidence or decide a fact in issue....” Levi v. Dir. 9 of Corr., 2006 U.S. Dist. LEXIS 18795, *2 (E.D.Cal. 2006) (citation omitted). 10 The IFP statute, 28 U.S.C. § 1915, does not waive the requirement of the payment 11 of fees or expenses for witnesses in a § 1983 prisoner civil rights action. Dixon v. Ylst, 12 990 F.2d 478, 480 (9th Cir. 1993). “Reasonably construed, [Rule 706] does not 13 contemplate the appointment of, and compensation for, an expert to aid one of the 14 parties.” Trimble v. City of Phoenix Police Dept., 2006 U.S. Dist. LEXIS 13061, *6 (D. 15 Ariz. 2006) (citation omitted). 16 B. Discussion and Order. 17 In his request to appoint an expert, Plaintiff argues that an expert’s testimony is 18 needed to understand the complex medical issues in this case. He explains that a jury 19 will need an unbiased expert’s help to understand those issues. Specifically, he argues 20 that an expert is needed to (1) determine the short and long term effects of soft tissue 21 exposure to radiation from x-rays; (2) audit the CDCR’s use of protective devices during 22 x-rays for inmates; and (3) diagnose and treat Plaintiff’s skin condition. 23 Presumably the facts regarding Plaintiff’s medical situation would go toward his 24 Eighth Amendment claim for deliberate indifference to medical needs. To prevail on a 25 deliberate indifference claim, Plaintiff must show that Defendants acted with deliberate 26 indifference to his serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104 27 (1983). Deliberate indifference has a subjective component because it requires the court 28 to “consider the seriousness of the prisoner’s medical need and the nature of the 5 16cv487 MMA (NLS) 1 defendant’s response to that need.” Levi, 2006 U.S. Dist. LEXIS at 3 (citation omitted). 2 In the context of such a claim, “the question of whether the prison officials displayed 3 deliberate indifference to [Plaintiff's] serious medical needs [does] not demand that the 4 jury consider probing, complex questions concerning medical diagnosis and judgment.” 5 Id. Courts have declined to appoint an expert under such circumstances. Id. Therefore, 6 Plaintiff's request for appointment of a medical expert witness is DENIED. 7 III. 8 Plaintiff filed a motion to compel Defendants to provide more definite answers to 9 Motion to Compel a More Definite Answer. discovery. To the extent the parties have not yet met and conferred on any of the requests 10 in dispute, defense counsel must arrange and hold a telephonic meet and confer with 11 Plaintiff by May 11, 2017. Defendants then must file a notice of resolution of any of the 12 items in dispute, along with an opposition to any outstanding issues, by May 18, 2017. 13 The court will then take the matter under submission. 14 In this motion Plaintiff also asks to extend the May 27, 2017 discovery deadline by 15 three months for defendant Ramirez. Defendant Ramirez did not file an answer in this 16 action until February 14, 2017. The court finds good cause to continue the discovery 17 deadline as to defendant Ramirez only to June 27, 2017, as Plaintiff has already started 18 discovery regarding Ramirez, continuing the date to June 27 gives him three months from 19 now to finish that discovery, and that date is before the motion filing cutoff. 20 IV. 21 On March 29, 2017 the court issued an order that granted Plaintiff’s motion to Sua Sponte Extension of Time to Provide Subpoena. 22 issue a subpoena to be served on third party Maxim Healthcare, so that he can subpoena 23 from them the forwarding address for defendant Wiley. The court directed the clerk to 24 issue the subpoena and ordered Plaintiff to fill it out and then provide it to the U.S. 25 Marshal by May 1, 2017. The clerk did not mail out the subpoena, however, until April 26 25, 2017. See Dkt. No. 78 (summons issued for defendant Wiley and mailed out to 27 Plaintiff along with subpoena). The court, thus, sua sponte CONTINUES the May 1, 28 2017 deadline for Plaintiff to provide the subpoena to the Marshal with the location 6 16cv487 MMA (NLS) 1 information for Maxim Healthcare to June 1, 2017. The Marshal will have 30 days from 2 receipt of the subpoena to serve it on Maxim Healthcare. 3 4 IT IS SO ORDERED. Dated: April 27, 2017 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 16cv487 MMA (NLS)

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