(PC) Gomez v. Unknown ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NEXIS RENE GOMEZ, Case No. 2:20-cv-02259-KJM-JDP (PC) 12 Plaintiff, 13 v. ORDER 14 UNKNOWN, 15 Defendant. 16 17 Plaintiff is a state inmate proceeding without counsel in this civil rights action brought 18 under 42 U.S.C. § 1983. He moves for the court to appoint him counsel for the limited purpose of 19 identifying the unknown defendant. ECF No. 22. 20 Plaintiff alleges in his complaint that an unknown individual, who is only known to him as 21 a “scheduler” who worked at High Desert State Prison between January and February 2012, 22 delayed his medical care in violation of the Eighth Amendment. ECF No. 1. When I screened 23 plaintiff’s complaint, I ordered the Clerk of Court to provide plaintiff with a signed subpoena 24 form to request documents from a non-party so that plaintiff could seek documents identifying the 25 unknown defendant. I instructed plaintiff to file a motion substituting in the named individual 26 defendant if he successfully identified the defendant. ECF No. 8. 27 Plaintiff returned a completed subpoena to the court; however, it was directed at High 28 Desert State Prison, which is not a separate and distinct entity. I modified the submitted 1 subpoena to reflect that it be served on CDCR’s Office of Legal Affairs at 1515 S Street, Ste. 314 2 South, Sacramento, CA 95811. ECF No. 16. 3 Plaintiff later filed a motion to compel stating that he had not received a response from the 4 subpoena. ECF No. 19. Since I had directed service of the subpoena more than six months prior, 5 court staff contacted the U.S. Marshal and learned that the subpoena had not been served. Thus, I 6 again directed the U.S. Marshal to personally serve the subpoena on CDCR’s Office of Legal 7 Affairs. ECF No. 20. 8 Plaintiff received CDCR’s response to the subpoena; however, he asserts that the response 9 is overly broad. ECF No. 22. The response lists almost thirty individuals, but none of the names 10 specify who was responsible for “handling medical referrals for psychiatric care and scheduling 11 related appointments” between January and February 2012 at HDSP, as the subpoena had 12 requested. Id. at 5. 13 In an effort to find the unidentified defendant, plaintiff has filed his third request for 14 counsel in the hopes that counsel may identify the defendant. 15 Plaintiff does not have a constitutional right to appointed counsel in this action, see Rand 16 v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court lacks the authority to require an 17 attorney to represent plaintiff. See Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296, 18 298 (1989). The court may request the voluntary assistance of counsel. See 28 U.S.C. 19 § 1915(e)(1) (“The court may request an attorney to represent any person unable to afford 20 counsel”); Rand, 113 F.3d at 1525. However, without a means to compensate counsel, the court 21 will seek volunteer counsel only in exceptional circumstances. In determining whether such 22 circumstances exist, “the district court must evaluate both the likelihood of success on the merits 23 [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 24 legal issues involved.” Rand, 113 F.3d at 1525 (internal quotation marks and citations omitted). 25 While I am sympathetic to the struggles plaintiff has faced with identifying this unknown 26 defendant, the appointment of counsel is not warranted at this time. Plaintiff can, if he so 27 chooses, challenge the adequacy of CDCR’s response and seek appropriate relief. Fed. R. Civ. 28 Pro. 45(g). 1 Accordingly, it is hereby ORDERED that plaintiff's motion, ECF No. 22, is denied 2 | without prejudice. 3 4 IT IS SO ORDERED. Dated: _ July 12, 2023 q-—— 6 JEREMY D. PETERSON 7 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28