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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Plaintiff,

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Case No.: 16cv487 MMA (NLS)

MORIANO MILLARE,

ORDER:

v.

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(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.

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(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.

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16cv487 MMA (NLS)

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Plaintiff Moriano Millare, a California inmate proceeding pro se and in forma

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pauperis (IFP), filed suit under 42 U.S.C. § 1983 alleging various violations by multiple

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defendants of his civil rights. Most of the claims revolve around Millare being allegedly

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exposed to radiation during x-ray examinations, being assigned to a top bunk even though

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he had a pre-existing broken leg and neck and back pain, and excessive force used on him

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in connection with his attendance at medical appointments. Millare recently filed

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multiple motions; the court addresses each in turn below.

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I.

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Millare asks this court to appoint counsel for these reasons: (1) he cannot afford

Motion for Appointment of Counsel.

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counsel; (2-4) the issues are complex; (5-6) he has limited access to scientific facts

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regarding radiation and dermatology; (7) Defendants continue to perform x-rays on him;

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(8-10) defendants Ciborowski and Wiley have yet to be served, Ramirez was only

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recently served, and extensive discovery remains to be taken on these three Defendants;

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(11-13) Plaintiff says he needs to use expert witnesses and take depositions; and (14)

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Plaintiff intends to amend the complaint.

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To address some of these points, defendant Cibrowski was served on April 11,

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2017 [Dkt. No. 77] and the court has taken steps to facilitate service of the complaint on

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defendant Wiley [Dkt. No. 71 and section IV below]. The remaining relevant points for

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requesting counsel are that Plaintiff is indigent and the issues are complex and require

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extensive discovery.

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A. Legal Standard.
The Constitution provides no absolute right to the appointment of counsel in any

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civil proceeding. Hedges v. Resolution Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994).

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In pro se and in forma pauperis proceedings, district courts do not have the authority “to

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make coercive appointments of counsel.” Mallard v. United States District Court, 490

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U.S. 296, 310 (1989). But they do have the discretion to request that an attorney

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represent an indigent civil litigant upon a showing of “exceptional circumstances.” 28

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U.S.C. § 1915(e)(1); Agyeman v. Corrections Corp. Of America, 390 F.3d 1101, 1103
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(9th Cir. 2004).
A finding of exceptional circumstances “requires an evaluation of both the

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likelihood of success on the merits and the ability of the [plaintiff] to articulate his claims

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pro se in light of the complexity of the legal issues involved.” Wilborn v. Escalderon,

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789 F.2d 1328, 1331 (9th Cir. 1986), quoting Weygandt v. Look, 718 F.2d 952, 954 (9th

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Cir. 1983). Neither of the Wilborn factors are dispositive, and they must be viewed

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together before the district court reaches its decision. Id.

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B. Discussion.
1. Likelihood of Success on the Merits.
A plaintiff that provides no evidence of his likelihood of success at trial fails to

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satisfy the first factor of the Wilborn test. Bailey v. Lawford, 835 F. Supp. 550, 552 (S.D.

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Cal. 1993). Here, there is very little before the court regarding the merits of Plaintiff’s

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case, other than the assertions in the complaint and this motion. As a result, it is difficult

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at this time to determine the likelihood that Plaintiff will succeed on the merits.

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Therefore, Plaintiff fails to satisfy the first Wilborn factor.

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2. Plaintiff’s Ability to Articulate His Claims.
Where a pro se civil rights plaintiff shows he has a good grasp of basic litigation

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procedure and has articulated his claims adequately, he does not demonstrate the

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exceptional circumstances required for the appointment of counsel. See Palmer v.

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Valdez, 560 F.3d 965, 970 (9th Cir. 2009). As another court in this district noted, there is

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“no doubt [that] most pro se litigants find it difficult to articulate their claims and would

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be better served with the assistance of counsel.” Garcia v. Cal. Dep’t of Corrections &

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Rehab., 2013 WL 485756, at *1 (S.D. Cal. Feb. 6, 2013). But it is for this reason that

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federal courts employ procedures that protect a pro se litigant’s rights. See Haines v.

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Kerner, 404 U.S. 519, 520 (1972). In pro se civil rights cases, a court must construe the

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pleadings liberally and afford the plaintiff any benefit of the doubt. Karim-Panahi v. Los

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Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). Thus, where a pro se plaintiff

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can articulate his claims in light of their relative complexity, there are no exceptional
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16cv487 MMA (NLS)

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circumstances to justify appointment of counsel. Garcia, 2013 WL 485756, at *1, citing

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Wilborn, 789 F.2d at 1331.

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The purported complexity of this case and required use of experts have not

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prevented Plaintiff from articulating his claims thus far. This court reviewed Plaintiff’s

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complaint and finds that the issues he raises are not particularly complex. The court

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understands his claims and the relief sought. Plaintiff also demonstrated that he has a

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good grasp on basic litigation procedure, as evidenced by the pleadings and 16 motions

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he has filed with this court thus far, some of which have been granted.

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The court finds that Plaintiff has sufficiently put on his case thus far in light of the

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complexity of the legal issues involved. As for his argument that he lacks funds and

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needs counsel to work with expert witnesses to prepare this case for trial, such an issue is

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common to most prisoners, and does not amount to exceptional circumstances. See, e.g.,

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Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990) (denying appointment of

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counsel where plaintiff complained that he had limited access to law library and lacked a

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legal education).

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C. Conclusion and Order.

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Viewing the Wilborn factors together, Plaintiff has not shown a likelihood of

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success on the merits of his case or that he cannot articulate his claims and litigate this

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action pro se. Therefore, Plaintiff has not established the exceptional circumstances

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required for the appointment of counsel pursuant to 28 U.S.C. Section 1915(e)(1).

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The court, therefore, DENIES without prejudice Plaintiff’s motion for
appointment of counsel.

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II.

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Millare asks this court to appoint an expert witness to help the trier of fact

Motion for Expert Witness.

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understand the evidence and determine the facts at issue regarding his claims and

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purported suffering of skin damage, thinning, scars, an enduring itch, and intentional

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exposure to radiation by failure to use a lead blanket during x-ray procedures.

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A. Legal Standard.

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An expert witness may testify to help the trier of fact determine the evidence or a

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fact at issue. Fed. R. Evid. 702. A court has full discretion to appoint an expert witness

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either by its own motion or by a party’s motion. Fed. R. Evid. 706(a); McKinney v.

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Anderson, 924 F.2d 1500, 1510-11 (9th Cir. 1991), overruled on other grounds by

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Helling v. McKinney, 502 U.S. 903 (1991). Appointment of an expert witness may

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generally be appropriate when “scientific, technical, or other specialized knowledge will

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assist the trier of fact to understand the evidence or decide a fact in issue....” Levi v. Dir.

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of Corr., 2006 U.S. Dist. LEXIS 18795, *2 (E.D.Cal. 2006) (citation omitted).

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The IFP statute, 28 U.S.C. § 1915, does not waive the requirement of the payment

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of fees or expenses for witnesses in a § 1983 prisoner civil rights action. Dixon v. Ylst,

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990 F.2d 478, 480 (9th Cir. 1993). “Reasonably construed, [Rule 706] does not

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contemplate the appointment of, and compensation for, an expert to aid one of the

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parties.” Trimble v. City of Phoenix Police Dept., 2006 U.S. Dist. LEXIS 13061, *6 (D.

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Ariz. 2006) (citation omitted).

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B. Discussion and Order.

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In his request to appoint an expert, Plaintiff argues that an expert’s testimony is

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needed to understand the complex medical issues in this case. He explains that a jury

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will need an unbiased expert’s help to understand those issues. Specifically, he argues

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that an expert is needed to (1) determine the short and long term effects of soft tissue

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exposure to radiation from x-rays; (2) audit the CDCR’s use of protective devices during

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x-rays for inmates; and (3) diagnose and treat Plaintiff’s skin condition.

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Presumably the facts regarding Plaintiff’s medical situation would go toward his

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Eighth Amendment claim for deliberate indifference to medical needs. To prevail on a

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deliberate indifference claim, Plaintiff must show that Defendants acted with deliberate

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indifference to his serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104

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(1983). Deliberate indifference has a subjective component because it requires the court

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to “consider the seriousness of the prisoner’s medical need and the nature of the
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16cv487 MMA (NLS)

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defendant’s response to that need.” Levi, 2006 U.S. Dist. LEXIS at 3 (citation omitted).

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In the context of such a claim, “the question of whether the prison officials displayed

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deliberate indifference to [Plaintiff's] serious medical needs [does] not demand that the

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jury consider probing, complex questions concerning medical diagnosis and judgment.”

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Id. Courts have declined to appoint an expert under such circumstances. Id. Therefore,

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Plaintiff's request for appointment of a medical expert witness is DENIED.

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III.

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Plaintiff filed a motion to compel Defendants to provide more definite answers to

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Motion to Compel a More Definite Answer.

discovery. To the extent the parties have not yet met and conferred on any of the requests

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in dispute, defense counsel must arrange and hold a telephonic meet and confer with

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Plaintiff by May 11, 2017. Defendants then must file a notice of resolution of any of the

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items in dispute, along with an opposition to any outstanding issues, by May 18, 2017.

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The court will then take the matter under submission.

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In this motion Plaintiff also asks to extend the May 27, 2017 discovery deadline by

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three months for defendant Ramirez. Defendant Ramirez did not file an answer in this

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action until February 14, 2017. The court finds good cause to continue the discovery

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deadline as to defendant Ramirez only to June 27, 2017, as Plaintiff has already started

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discovery regarding Ramirez, continuing the date to June 27 gives him three months from

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now to finish that discovery, and that date is before the motion filing cutoff.

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IV.

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On March 29, 2017 the court issued an order that granted Plaintiff’s motion to

Sua Sponte Extension of Time to Provide Subpoena.

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issue a subpoena to be served on third party Maxim Healthcare, so that he can subpoena

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from them the forwarding address for defendant Wiley. The court directed the clerk to

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issue the subpoena and ordered Plaintiff to fill it out and then provide it to the U.S.

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Marshal by May 1, 2017. The clerk did not mail out the subpoena, however, until April

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25, 2017. See Dkt. No. 78 (summons issued for defendant Wiley and mailed out to

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Plaintiff along with subpoena). The court, thus, sua sponte CONTINUES the May 1,

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2017 deadline for Plaintiff to provide the subpoena to the Marshal with the location
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information for Maxim Healthcare to June 1, 2017. The Marshal will have 30 days from

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receipt of the subpoena to serve it on Maxim Healthcare.

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IT IS SO ORDERED.
Dated: April 27, 2017

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