Opinion
No. CIV S-05-1445 MCE JFM P.
February 1, 2006
ORDER
Plaintiff is a county jail inmate proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. By order filed October 24, 2005, plaintiff's September 29, 2005 request to add a new defendant, Dr. Hawley, to this action was denied without prejudice. On November 1, 2005, plaintiff filed a proposed amended complaint clarifying the basis for his claim against Dr. Hawley. Plaintiff's proposed amended complaint was filed prior to service of any answer filed in this action. It is therefore filed as of right. See Fed.R.Civ.P. 15.
On November 29, 2005, defendant Harvey filed an answer to the original complaint. Defendant Harvey is not named as a defendant in the November 1, 2005 amended complaint and will not, therefore, be required to respond further in this action.
The amended complaint states a cognizable claim for relief against Dr. Hawley and Dr. Christison pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). If the allegations of the amended complaint are proven, plaintiff has a reasonable opportunity to prevail on the merits of this action. Good cause appearing, the court will direct plaintiff to return documents necessary for service of the amended complaint on Drs. Hawley and Christison.
On December 6, 2005, plaintiff filed a document styled "Motion for Summary Judgment." Plaintiff's amended complaint has not yet been served on either defendant named in the amended complaint and plaintiff did not serve the motion on said defendants. Cf. Fed.R.Civ.P. 5. The motion is premature and will therefore be denied without prejudice.
On December 6, 2005 plaintiff filed a document styled as objections to a subpoena issued to the custodian of records for the Shasta County Jail. The document contains no specific objections to the subpoena. It will be placed in the court file and disregarded. On December 19, 2005, plaintiff filed a letter stating that his deposition had been noticed for December 30, 2005 in Sacramento, California and that he would be unable to attend the deposition unless transported there by Shasta County marshals. The time set for the deposition has passed and it appears that plaintiff's objection may have been mooted by the passage of time. The court notes, however, that it has not yet granted the parties leave to depose incarcerated persons in this action. Cf Fed.R.Civ.P. 30(a). Plaintiff's objection to the notice of deposition is noted.
Such permission will be forthcoming following the appearance of either Dr. Hawley or Dr. Christison.
Finally, plaintiff's December 19, 2005 letter includes an inquiry about assistance of counsel. The United States Supreme Court has ruled that district courts lack authority to require counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). In the present case, the court does not find the required exceptional circumstances. Plaintiff's request for the appointment of counsel will therefore be denied.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Service is appropriate for the following defendants: Dr. Hawley and Dr. Christison.
2. The Clerk of the Court shall send plaintiff two USM-285 forms, one summons, an instruction sheet and a copy of the amended complaint filed November 1, 2005.
3. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit the following documents to the court:
a. The completed Notice of Submission of Documents;
b. One completed summons;
c. One completed USM-285 form for each defendant listed in number 1 above; and
d. Three copies of the endorsed amended complaint filed November 1, 2005.
4. Plaintiff need not attempt service on defendants and need not request waiver of service. Upon receipt of the above-described documents, the court will direct the United States Marshal to serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 without payment of costs.
5. Defendant Harvey is not required to respond to the amended complaint.
6. Plaintiff's December 6, 2005 motion for summary judgment is denied without prejudice.
7. Plaintiff's December 6, 2005 objections to a subpoena duces tecum directed to the Custodian of Records at the Shasta County Jail shall be placed in the court file and disregarded.
8. Plaintiff's December 19, 2005 objection to the notice of deposition setting his deposition for December 30, 2005 is noted.
9. Plaintiff's December 19, 2005 request for appointment of counsel is denied.
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
LEVI SMITH, Plaintiff, No. CIV S-05-1445 MCE JFM Pvs.
CLAIR TESKE, et al., NOTICE OF SUBMISSION Defendants. OF DOCUMENTS
Plaintiff hereby submits the following documents in compliance with the court's order filed ______________________:
_____ completed summons form
_____ completed USM-285 forms
_____ copies of the __________________________ Amended Complaint
DATED:
____________________________________ Plaintiff