(PC) Gomez v. Unknown

Opinion

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

Dated: _ July 12, 2023 q-—— JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE