January 15, 2014
SALADIN RUSHDAN, Plaintiff,
JEFFREY BEARD, Director-Secretary, California Department of Corrections and Rehabilitation, Defendant.
ORDER REOPENING CASE, SETTING BRIEFING SCHEDULE REGARDING PLAINTIFF'S MOTION TO ENFORCE SETTLEMENT AGREEMENT AND FOR CONTEMPT AND DENYING PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL Docket nos. 118 and 119.
THELTON E. HENDERSON, District Judge.
Plaintiff Saladin Rushdan, an inmate at California State Prison in Corcoran (CSP-Corcoran), has filed a motion to enforce a 1994 agreement between himself and the Director of the California Department of Corrections and Rehabilitation (CDCR) to settle his claims for deliberate indifference to serious medical needs and related claims asserted in the instant case, C-90-2895 TEH (PR). He also seeks an order holding the CDCR in contempt for not complying with the terms of the settlement agreement. This case was dismissed with prejudice on December 28, 1994, pursuant to the settlement agreement. Doc. ## 114-116.
Plaintiff attaches a copy of the settlement agreement to his motion. The relevant portions are as follows:
Claimant is to receive medical care for his Keloidal condition from Dr. Roy C. Grekin, M.D. or from anyone designated by Dr. Grekin. Dr. Grekin will also prescribe and/or order medical care for the Claimant to be rendered by CDCR staff at the California Medical Facility (CMF) in Vacaville, California. The Chief Medical Officer at CMF will oversee the medical care prescribed and/or ordered by Dr. Grekin for the Claimant at CMF for the period to be prescribed by Dr. Grekin.
1994 Settlement Agreement ¶ 4(a).
Housing: The Claimant is to be housed in a single cell with a lower bunk for a period not less that fifteen (15) months commencing the date this agreement is signed.
Further, the Claimant is to be housed at CMF for the period that he is receiving medical care from Dr. Grekin.
Id. ¶ 4(b).
Implementation of Agreement: The Director of the California Department of Corrections (hereinafter "Director") shall be specifically responsible for the implementation of the provisions of this Agreement.
Further, in the event that any provision of this agreement is not implemented, the Claimant may bring an action against the Director to obtain performance of any of the provisions of this Agreement.
Id. ¶ 4(d).
In his motion, Plaintiff asserts that his medical treatment is ongoing to the present and the settlement agreement has been breached by the following actions: (1) he has been transferred to various prisons a number of times, a breach of paragraph 4(b), which requires that he be housed at CMF for the period he is receiving medical care from Dr. Grekin; (2) he has had his medical treatment cancelled, delayed and ignored; and (3) his single cell status has been revoked, a breach of paragraph 4(b).
Based on Plaintiff's representations, this case is re-opened and Defendant shall respond to Plaintiff's motion, in accordance with the briefing schedule set forth below.
Plaintiff moves for appointment of counsel. The decision to request counsel to represent an indigent litigant under § 1915 is within "the sound discretion of the trial court and is granted only in exceptional circumstances." Franklin v. Murphy , 745 F.2d 1221, 1236 (9th Cir. 1984). A finding of the "exceptional circumstances" of the plaintiff seeking assistance requires an evaluation of the likelihood of the plaintiff's success on the merits and an evaluation of the plaintiff's ability to articulate his claims pro se in light of the complexity of the legal issues involved. Agyeman v. Corrections Corp. of America , 390 F.3d 1101, 1103 (9th Cir. 2004).
Plaintiff's motion for appointment of counsel is denied without prejudice. Because this case is only now being re-opened and Defendant has not yet responded, it is too early to determine if Plaintiff meets the exceptional circumstances test. Plaintiff may re-file this motion at a later date and after Defendant responds, if he believes his case meets the exceptional circumstances requirement.
Based upon the foregoing, the Court orders the following:
1. The Clerk of the Court shall re-open this case.
2. Plaintiff's motion for appointment of counsel is denied without prejudice. Doc. #118.
3. This Order, together with Plaintiff's motion and the accompanying exhibits, doc. #119, shall be served on Defendant, and copies shall be mailed to the State Attorney General's Office in San Franc
4. Within twenty-eight days from the date of this Order, Defendant shall respond to Plaintiff's motion to enforce the settlement agreement and for contempt. Defendant's response shall include any relevant documenation and declarations. Plaintiff may file a reply within fourteen days thereafter, also including any relevant documentation and declarations.
5. This matter shall be decided on the papers. If the Court determines that a hearing is required, it shall so inform the parties.
IT IS SO ORDERED.