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SYKES v. ATHANNASIOUS, 2:12-cv-2570 KJM KJN P. (2013)

Court: District Court, E.D. California Number: infdco20130812468 Visitors: 39
Filed: Aug. 09, 2013
Latest Update: Aug. 09, 2013
Summary: ORDER KENDALL J. NEWMAN, Magistrate Judge. Plaintiff is a state prisoner, currently incarcerated at the California Medical Facility, in Vacaville, California, who proceeds with appointed counsel, Mr. Isaac Fischer, for several limited purposes. 1 ( See ECF No. 28.) Counsel was appointed in this case due to plaintiff's age (78 years) and limited education, together with the apparent seriousness of plaintiff's medical issues and deliberate indifference claims. Nevertheless, this action has be
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ORDER

KENDALL J. NEWMAN, Magistrate Judge.

Plaintiff is a state prisoner, currently incarcerated at the California Medical Facility, in Vacaville, California, who proceeds with appointed counsel, Mr. Isaac Fischer, for several limited purposes.1 (See ECF No. 28.) Counsel was appointed in this case due to plaintiff's age (78 years) and limited education, together with the apparent seriousness of plaintiff's medical issues and deliberate indifference claims.

Nevertheless, this action has been delayed due to the fact that one of the primary defendants, Dr. Bick, has been living outside the country for a year, to return by the end of this month, August 2013. (See ECF Nos. 42-3.) The Attorney General's office recently stated that it will accept service on behalf of Dr. Bick, but only "pending his authorization upon his return." (ECF No. 43 at 1).

Within the last two weeks, plaintiff, in pro se, has filed three separate motions to file an amended complaint. (See ECF Nos. 44-6.) Most significantly, plaintiff seeks to add additional defendants whom he believes are essential to his claims. Plaintiff alleges that Mr. Fischer has not been in contact with plaintiff since an initial visit, and has since refused to answer plaintiff's telephone calls or respond to plaintiff's correspondence.

A plaintiff who is represented by counsel is precluded from filing and serving matters in pro se. However, when it appears that a prisoner litigant and his appointed counsel are experiencing communication difficulties, the court will seek to ascertain whether the appointment should continue. Importantly, in the instant case, it is reasonable to assume that Mr. Fischer has been awaiting the return of Dr. Bick, and service of process upon him, before actively proceeding in this action. Mr. Fischer has missed no deadlines or failed to adhere to any orders of this court. Nevertheless, the court will require Mr. Fischer to respond to plaintiff's concerns, and to identify any progress he has made toward achieving the other goals of his appointment.

Accordingly, for good cause shown, within fourteen (14) days after the filing date of this order, Mr. Fischer shall submit to the court, a confidential statement2 that is responsive to plaintiff's several concerns, as set forth in his recent pleadings, supporting declarations and exhibits (ECF Nos. 44-6). Counsel shall generally inform the court of the services he has provided to date; whether counsel finds good cause for amendment of the operative complaint; or whether counsel recommends the commencement of discovery on the operative complaint, even while awaiting service of process on defendant Bick; whether counsel has assessed the appropriateness of a medical expert and, if so, whether counsel has selected one; the reasons underlying each of these assessments; and whether counsel has any reservations about continuing to represent plaintiff in this action. Counsel shall serve a copy of his statement on plaintiff, who may, within seven (7) days after service, send3 a confidential responsive statement to the court's mailing address, and serve a copy on Mr. Fischer.

In summary, IT IS HEREBY ORDERED that:

1. Mr. Fischer shall, within fourteen (14) days after the filing date of this order, submit to the court, and serve on plaintiff, a confidential statement that is responsive to plaintiff's concerns (ECF Nos. 44-6).

2. Plaintiff may, within seven (7) days after service of counsel's statement, submit to the court, and serve on Mr. Fischer, a confidential responsive statement.

SO ORDERED.

FootNotes


1. Mr. Fischer was appointed for the following purposes (ECF No. 28 at ): a. Meet and confer with plaintiff regarding the allegations and claims set forth in his complaint; b. Provide the U.S. Marshal with any additional information necessary to perfect service of process on all defendants; c. Assess whether appointment of a medical expert is appropriate and, if so, select and obtain the consulting and reporting services of such expert, subject to the court's authorization of such expenses; and d. Participate in an early settlement conference, if all parties request such a conference, after all defendants have been served.

The court noted that, "[i]f this action proceeds after the conclusion of an early settlement conference, Mr. Fischer's appointment will be reevaluated, including consideration whether counsel wishes to continue representing plaintiff through discovery, motions, a further settlement conference, and/or trial." (Id.)

2. Mr. Fischer shall submit his confidential statement to the undersigned at kjnorders@caed.uscourts.gov
3. Plaintiff may submit his statement by email (see n.2, supra), if available. Alternatively, plaintiff shall send his statement to the attention of the undersigned magistrate judge, at the United States District Court, Eastern District of California, 501 "I" Street, Sacramento CA 95814. Upon review of the submissions the undersigned will determine whether it is appropriate to file the submissions, either under seal or not.
Source:  Leagle

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