O'Neill v. Baker et al

Filing 40

ORDER denying 34 motion for health status check. Signed by Judge Miranda M. Du on 6/17/13. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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CHRISTOPHER O’NEILL,

Case No. 3:11-cv-00901-MMD-VPC
Petitioner,

ORDER

v.
RENEE BAKER, et al.,
Respondents.

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This represented habeas matter comes before the Court on petitioner’s motion
for health status check (dkt. no. 34).

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Petitioner, through the Federal Public Defender, moves in this habeas case for

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an order directing respondents to perform allegedly required medical tests, including a

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liver biopsy, and to provide a health status check report to the Court regarding his

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hepatitis C. Petitioner seeks such a health status check so that the Court “can

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determine the future course of this litigation,” apparently in connection with possibly

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expediting the matter. The motion asserts that, after counsel became concerned about

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petitioner’s health, an attorney and paralegal went to see petitioner on February 21,

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2013. According to the motion, petitioner showed them, “through his shirt,” that he had

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a large lump on the right side of his “stomach” – apparently referring to his abdomen or

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trunk – where his liver is located.

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Petitioner has a civil rights action currently pending in this Court directed to the

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very same hepatitis C health care issues, in Case No. 3:12-cv-00030-LRH-WGC. In

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that action, the Court denied petitioner’s motion for appointment of counsel. The Court

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also denied a motion seeking the appointment of a court-ordered expert hepatologist

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sought by plaintiff to assist the Court in assessing the adequacy of the medical care

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provided for his hepatitis C. The Court further denied a motion for preliminary injunction

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specifically seeking to have petitioner evaluated by a liver specialist and given a liver

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biopsy. The Court noted that the evidence presented reflected a difference of opinion

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between petitioner and the medical providers regarding the proper course of treatment

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for his hepatitis C. Petitioner has appealed from that denial and his appeal currently is

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pending before the Ninth Circuit. See dkt. nos. 10, 25, 32, 34, 63, 72 and 75, in Case

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No. 3:12-cv-00030-LRH-WGC.

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The Court understands counsel’s concern. However, counsel neither is qualified

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to conduct a medical examination of petitioner “through his shirt” nor is appointed in this

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habeas action to pursue his civil rights litigation indirectly through this litigation.

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Whatever relief needs to be sought with regard to petitioner’s hepatitis C must be

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sought by Mr. O’Neill in the civil rights litigation. The undersigned will not entertain an

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essentially collateral attack on the orders and rulings made in the civil rights action

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under the guise of “determining the future course of this litigation.” The future course of

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this litigation is clear, with respondents’ answer currently due on July 15, 2013, and

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petitioner’s counseled reply due thirty (30) days from service of the answer. If counsel

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believes, on the information available, that expedited action is warranted, petitioner can

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move for such relief. Should the Court grant such a motion ─ to put petitioner’s case

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ahead of the cases of other habeas petitioners who also allege that they are held in

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violation of the Constitution ─ it will proceed as promptly as it is able.

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IT IS THEREFORE ORDERED that petitioner’s motion for health status check
(dkt. no. 34) is DENIED.
DATED THIS 17th day of June 2013.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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