September 23, 2013
MICHAEL GRESS, Plaintiff,
C. SMITH, et al., Defendants.
KENDALL J. NEWMAN, District Judge.
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).
Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
In his 32 page complaint, plaintiff states that he had headaches in late 2005, and began developing eye issues. On June 10, 2006, plaintiff had "spinning fans" in his vision which he alleges the eye doctor attributed to migraines. In July of 2006, plaintiff began suffering tremors. Plaintiff claims his symptoms were continuous over the course of the next few years, until October 12, 2010, when he had a grand mal seizure. Plaintiff continued to complain of vision issues, and on December 15, 2010, plaintiff was told he had a brain tumor, and was provided emergency surgery the next day. A 3.8 x 3.4 cm. tumor was removed. Plaintiff alleges deliberate indifference to his serious medical needs, including delay in diagnosis, as well as state law claims for medical malpractice and negligence. Plaintiff names 27 individuals as defendants, as well as 100 Doe defendants.
On September 4, 2013, pursuant to this court's August 23, 2013 order, plaintiff filed a motion for the appointment of counsel. As discussed at the August 22, 2013 status conference, the court finds appointment of counsel is warranted and grants plaintiff's motion. Ryan M. Daugherty has been selected from the court's pro bono attorney panel to represent plaintiff and has accepted the appointment.
Moreover, in light of the appointment of counsel, plaintiff's complaint is dismissed, and counsel is granted ninety days in which to file an amended complaint. Plaintiff is cautioned that failure to file an amended complaint may result in the dismissal of this action.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's request for leave to proceed in forma pauperis is granted.
2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). All fees shall be collected and paid in accordance with this court's order to the Director of the California Department of Corrections and Rehabilitation filed concurrently herewith.
3. Plaintiff's motion for appointment of counsel (ECF No. 15) is granted.
4. Ryan M. Daugherty is appointed as counsel in the above entitled matter.
5. Appointed counsel shall notify Sujean Park at (916) 930-4278, or via email at email@example.com if he has any questions related to the appointment.
6. The Clerk of the Court is directed to serve a copy of this order upon Ryan M. Daugherty, Daugherty Law Firm, P. O. Box 19115, Sacramento, CA 95819.
7. Plaintiff's complaint is dismissed.
8. Within ninety days from the date of this order, counsel for plaintiff shall file an amended complaint.