Beede 351589 v. Pinal County Sheriff Facility

Opinion

1 SM 2 WO 3 4 5 8 9 Jonathan Robert Beede, No. CV 21-02087-PHX-JAT (JZB) 10 Plaintiff, 11 v. ORDER 12 Pinal County Sheriff Facility, et al., 13 Defendants.

14 15 Plaintiff Jonathan Robert Beede, who is currently confined in Arizona State Prison 16 Complex (ASPC)-Yuma, La Paz Unit, brought this civil rights case pursuant to 42 U.S.C. 17 § 1983. (Doc. 19.) On screening Plaintiff’s Third Amended Complaint (Doc. 19) pursuant 18 to 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated a Fourteenth 19 Amendment medical care claim in Count One against Defendants Wexford and Kelly and 20 a First Amendment retaliation claim in Count Two against Defendants Pinal County and 21 Valdez and directed them to answer. (Doc. 20.) 22 On September 26, 2022, the United States Marshal Service concurrently filed three 23 proofs of service, stating that service had been executed on Defendants Pinal County (Doc. 24 21), Wexford (Doc. 22), and Valdez (Doc. 23). Service was returned unexecuted as to 25 Defendant Kelly. (Doc. 24.) In the remarks section of the returned notice, the Marshal 26 noted that “[t]here is not a Nurse Kelly that works for Wexford Health Services per Amy 27 Galpin – Wexford Health Services assistant.” (Id.) 28 1 In a November 15, 2022 Order, the Court directed Defendant Wexford to provide 2 the name and current working address of the intake nurse who worked on March 31, 2021 3 during Plaintiff’s intake into the Pinal County jail. (Doc. 37 at 3.) The Court gave Plaintiff 4 leave to file a motion to substitute the proper defendant. (Id.) 5 On December 14, 2022, in response to the Court’s Order, Defendant Wexford 6 indicated that it had disclosed the name of the intake nurse, Dawn Tuttle, to Plaintiff in its 7 Initial Disclosure Statement dated November 11, 2022 (Doc. 36). (Doc. 42.) Defendant 8 Wexford attached a Waiver of Service on behalf of Nurse Tuttle. (Doc. 42 at 4.) 9 On May 22, 2023, the Court ordered Plaintiff to show cause why Defendant Kelly 10 should not be dismissed from the action for failure to timely serve and why his claim in 11 Count One against the intake nurse should not be dismissed for failure to substitute the 12 proper defendant. (Doc. 70.) 13 Pending before the Court are Plaintiff’s Motion to Appoint Counsel (Doc. 77) and 14 Motion for a New Deadline to Substitute the Correct Defendant (Doc. 83.) 15 I. Motion to Appoint Counsel 16 There is no constitutional right to the appointment of counsel in a civil case. See 17 Ivey v. Bd. of Regents, 673 F.2d 266, 269 (9th Cir. 1982). In proceedings in forma pauperis, 18 the court may request an attorney to represent any person unable to afford one. 28 U.S.C. 19 § 1915(e)(1). Appointment of counsel under 28 U.S.C. § 1915(e)(1) is required only when 20 “exceptional circumstances” are present. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 21 1991). A determination with respect to exceptional circumstances requires an evaluation 22 of the likelihood of success on the merits as well as the ability of Plaintiff to articulate his 23 claims pro se in light of the complexity of the legal issue involved. Id. “Neither of these 24 factors is dispositive and both must be viewed together before reaching a decision.” Id. 25 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 26 Plaintiff states that he “is unable to afford counsel” and that his “imprisonment will 27 greatly limit his ability to litigate.” (Doc. 77 at 1.) Plaintiff asserts that “[t]he issues 28 involved in this case are complex and will require significant research and investigation. 1 Plaintiff has limited access to the law library and limited knowledge of the law.” (Id.) 2 Plaintiff is in no different position than many pro se prisoner litigants. Moreover, at this 3 time, the Court has no reason to conclude that Plaintiff’s claims are legally complex or that 4 Plaintiff will have difficulty articulating the factual bases of his claims. Having considered 5 both elements, it does not appear at this time that exceptional circumstances are present 6 that would require the appointment of counsel in this case. Thus, the Court will deny 7 without prejudice Plaintiff’s Motion for Appointment of Counsel. 8 II. Motion for New Deadline 9 Plaintiff’s Motion for New Deadline appears to be a response to the Court’s May 10 22, 2023 Order to Show Cause. Plaintiff asks the Court “for a new deadline to substitute 11 the correct Defendant from Nurse Kelly to Nurse Dawn Tuttle.” (Doc. 83 at 1.) The Court 12 will construe Plaintiff’s Motion for New Deadline as a Motion to Substitute, grant the 13 Motion, and substitute Defendant Kelly for Nurse Tuttle. As mentioned, Defendant 14 Wexford submitted a Waiver of Service for Nurse Tuttle (Doc. 42 at 4), so the Court will 15 direct her to answer the Third Amended Complaint. 16 IT IS ORDERED: 17 (1) Plaintiff’s Motion to Appoint Counsel (Doc. 77) is denied without 18 prejudice. 19 (2) Plaintiff’s Motion for New Deadline (Doc. 83), which the Court construes as 20 a Motion to Substitute, is granted. 21 (3) The Court’s May 22, 2023 Order to Show Cause (Doc. 70) is discharged. 22 (4) Nurse Dawn Tuttle is substituted for Defendant Kelly, and Defendant Kelly 23 is dismissed from the action. 24 . . . 25 . . . 26 . . . 27 . . . 28 . . . 1 (5) Defendant Tuttle must answer the Third Amended Complaint within 2| fourteen (14) days of the date this Order is issued. 3 Dated this 11th day of July, 2023. 4 ' ° 7 = James A. C rg Senior United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28