(PC) Patton v. Loadholt

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 ANTHONY L. PATTON, No. 2: 19-cv-0451 KJM KJN P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 F.N.P. LOADHOLT, et al., 15 Defendants. [17] 18 Plaintiff is a state prisoner proceeding with a civil rights action pursuant to 42 U.S.C. § 19 1983. Plaintiff alleges that he was denied adequate medical treatment for hepatitis C in violation 20 of the Eighth Amendment. The undersigned herein addresses plaintiff’s fifth amended complaint 21 (ECF No. 106), plaintiff’s motion for appointment of counsel (ECF No. 107), and the issue of 22 further discovery. 23 Fifth Amended Complaint 24 On October 1, 2021, the Honorable Kimberly J. Mueller appointed counsel for the limited 25 purpose of drafting an amended complaint. (ECF No. 102.) The court ordered the amended 26 complaint due within 120 days from the date of the order. (Id.) One hundred twenty days passed 27 and plaintiff’s counsel did not file an amended complaint. Accordingly, on February 7, 2022, the [28] 1 court ordered plaintiff’s counsel to show cause within fourteen days for their failure to file an 2 amended complaint. (ECF No. 104.) 3 In response to the show cause order, plaintiff’s counsel filed a fourth amended complaint 4 and a fifth amended complaint. (ECF Nos. 105, 106.) Good cause appearing, the show cause 5 order is discharged. 6 Named as defendants in the fifth amended complaint are Dr. Rading, Dr. Haile, Dr. 7 Aguilera, Dr. Dhillon and Dr. Ditomas.1 On February 24, 2022, defendants Rading, Haile, 8 Aguilera and Dhillon filed an answer to the fifth amended complaint. (ECF No. 108.) 9 The fifth amended complaint states potentially colorable claims for relief against 10 defendant Ditomas. Accordingly, the undersigned separately orders service of defendant 11 Ditomas. 12 The fifth amended complaint names six Doe Defendants. (ECF No. 106 at 4.) For the 13 reasons stated herein, the undersigned recommends that the Doe Defendants be dismissed. 14 The fifth amended complaint alleges that these Doe Defendants “were at relevant times, 15 medical professionals and employees of the state of California.” (Id.) The fifth amended 16 complaint states that the complaint will be amended when the Doe Defendants are identified by 17 name or when their identities are discovered. (Id.) 18 The fifth amended complaint contains no specific allegations against Doe Defendants. 19 However, the fifth amended complaint alleges, “…from the date that he was informed of this 20 infection in 2006 Plaintiff was requesting treatment from all of his PCPs, he was denied referral 21 for treatment and was advised that treatment was too expensive to [be] offered to Plaintiff. PCPs 22 also told plaintiff, that if untreated, HCV will cause liver damage and lead to cirrhosis.” (ECF 23 No. 106 at 16.) It appears that the Doe Defendants may include primary care providers, i.e., 24 PCPs, who allegedly denied plaintiff treatment. [25] 1 Defendants Rading, Haile, Aguilera and Dhillon are identified in the section of the fifth [26] amended complaint titled “Parties.” (ECF No. 106 at 3-4.) The section of the fifth amended 27 complaint describing the statement of facts refers to “Loadholt” and “defendant Loadholt.” (Id. at 8-9.) Because Loadholt is not clearly identified as a defendant, the undersigned does not construe 28 the fifth amended complaint to name Loadholt as a defendant. 1 Federal Rule of Civil Procedure 10 requires a plaintiff to include the names of the parties 2 in the action. Fed. R. Civ. P. 10(a). In a civil rights action brought by a prisoner without the 3 assistance of counsel, early discovery is available in certain circumstances. For example, the 4 Ninth Circuit has held: 5 [W]here the identity of the alleged defendant is not known prior to the filing of a complaint, the plaintiff should be given an opportunity 6 through discovery to identify the unknown defendants, unless it is clear that discovery would not uncover the identities, or that the 7 complaint would be dismissed on other grounds. 8 Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir.1999) (quoting Gillespie v. Civiletti, 629 9 F.2d 637, 642 (9th Cir.1980)). In Gillespie, the plaintiff, a prisoner proceeding pro se, filed a 10 civil rights action against several U.S. Marshals, prison officials, and prison guards. However, 11 the complaint did not name all the defendants. Instead, plaintiff identified the unknown 12 defendants as “John Doe” and “filed interrogatories requesting from the named defendants the 13 names and addresses of the [unnamed defendants].” Gillespie, 629 F.2d at 642–43. The district 14 court denied the request for discovery and dismissed the complaint, but the Ninth Circuit reversed 15 and held that the “district court abused its discretion in not permitting the discovery sought by the 16 [prisoner] ... [as][i]t was very likely that the answers to the interrogatories would have disclosed 17 the identities of the ‘John Doe’ defendants.” Id. at 643 . 18 For the following reasons, the undersigned finds that plaintiff has had ample opportunity 19 to discover the identify of Doe Defendants. 20 On November 25, 2020, the undersigned recommended that plaintiff’s motion to file a 21 third amended complaint be granted in part. (ECF No. 93.) In relevant part, the undersigned 22 recommended that plaintiff’s motion to amend to identify four previously named Doe Defendants 23 be granted. (Id. at 4-10.) Plaintiff claimed that he discovered the identity of the Doe Defendants 24 through discovery. (Id. at 7.) On September 30, 2021, Judge Mueller adopted the November 25, 25 2020 findings and recommendations. (ECF No. 101.) 26 As discussed above, on October 1, 2021, Judge Mueller appointed counsel to prepare an 27 amended complaint for plaintiff. The court granted counsel 120 days to prepare the amended 28 complaint, during which time counsel presumably reviewed plaintiff’s relevant medical records. 1 After reviewing plaintiff’s relevant medical records, counsel was apparently unable to identify the 2 Doe Defendants named in the fifth amended complaint. 3 The record reflects that plaintiff, through counsel, had adequate opportunity to discover 4 the identity of Doe Defendants named in the fifth amended complaint. Accordingly, the 5 undersigned recommends that the Doe Defendants named in the fifth amended complaint be 6 dismissed. 7 Plaintiff’s Motion for Appointment of Counsel 8 Plaintiff requests that counsel be appointed to investigate the identities of the Doe 9 Defendants named in the fifth amended complaint. (ECF No. 107.) Plaintiff suggests that 10 counsel who prepared the fifth amended complaint failed to conduct an adequate investigation to 11 determine the identities of the Doe Defendants. (Id.) 12 As discussed above, the court presumes that appointed counsel reviewed plaintiff’s 13 medical records in preparing the fifth amended complaint. The court presumes that counsel 14 named all appropriate defendants. Appointment of different counsel to review plaintiff’s medical 15 records in order to determine the identities of the Doe Defendants is not warranted. Accordingly, 16 plaintiff’s motion for appointment of counsel is denied. Terrell v. Brewer, 935 F.2d 1015 , 1017 17 (9th Cir. 1991) (in exceptional circumstances, the court may request an attorney to voluntarily 18 represent the plaintiff); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 19 Discovery Matters 20 Defendants Rading, Haile, Aguilera and Dhillon were named in the first amended 21 complaint. (ECF No. 9.) In the first amended complaint, plaintiff alleged that defendants failed 22 to treat his hepatitis C with the available medication on the grounds that the medication was too 23 costly. (Id.) The fifth amended complaint also alleges that defendants Rading, Haile, Aguilera 24 and Dhillon failed to treat plaintiff’s hepatitis C with the available medication due to cost. (ECF 25 No. 106.) 26 On March 17, 2020, the court issued a discovery and scheduling order setting the 27 discovery deadline as July 10, 2020. (ECF No. 40.) Therefore, plaintiff and defendants had an 28 adequate opportunity to conduct discovery as to the claims raised against defendants Rading, 1 | Haile, Aguilera and Dhillon in the first and fifth amended complaints. Accordingly, discovery is 2 || closed as to the claims against these defendants. After Ditomas appears in this action, the 3 || undersigned will issue an amended scheduling order permitting discovery only as to the claims 4 || against defendant Ditomas. 5 On October 7, 2020, the undersigned vacated the dispositive motion deadline. (ECF No. 6 || 82.) The undesigned will reset the dispositive motion deadline in the amended scheduling order. 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. The February 7, 2022 order to show cause (ECF No. 104) is discharged; 9 2. The Clerk of the Court shall amend court records to reflect that plaintiff is no longer 10 represented by counsel and is proceeding pro se; 11 3. Plaintiff's motions for appomtment of counsel (ECF No. 107, 111) are denied; and 12 IT IS HEREBY RECOMMENDED that the Doe Defendants named in the fifth amended 13 || complaint be dismissed. 14 These findings and recommendations are submitted to the United States District Judge 15 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within fourteen days 16 || after being served with these findings and recommendations, any party may file written 17 || objections with the court and serve a copy on all parties. Such a document should be captioned 18 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 19 || objections shall be filed and served within fourteen days after service of the objections. The 20 || parties are advised that failure to file objections within the specified time may waive the right to 21 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 22 || Dated: March 1, 2022 Aectl Aharon 24 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE [27] Pat451.ame(5)