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Mazza v. Austin

United States District Court, E.D. California

June 12, 2017

BRYAN MAZZA, Plaintiff,
v.
L. AUSTIN, et al., Defendants.

          ORDER AND ORDER TO SHOW CAUSE

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.

         Plaintiff is a state prisoner proceeding pro se and in forma pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff is pursuing claims against five defendants for alleged deliberate indifference to his serious medical needs. The operative complaint and addendum (exhibits), construed together by the court in deference to plaintiff's pro se status, are identified on the docket at ECF No. 38. This action was stayed for several months while plaintiff was temporarily housed at a county jail facility. Upon plaintiff's return to state prison, the court, on March 29, 2017, issued a Further Discovery and Scheduling Order, setting a discovery deadline of August 18, 2017, and a dispositive motion deadline of November 17, 2017. See ECF No. 83. Plaintiff has now filed several documents requesting the assistance of the court. For the reasons that follow, plaintiff's requests are denied with the exception of his request that defendants be required to show cause why plaintiff is not obtaining the pain medication allegedly prescribed by his treating neurologist.

         MEDICAL EXPERT

         Plaintiff requests that he be provided a thorough medical examination, including review of his medical records, by an outside medical expert. See ECF No. 88. Because there is no authority or resources for appointing an expert medical witness to serve as plaintiff's advocate in this action, this motion will be denied. The in forma pauperis statute, 28 U.S.C. § 1915, “does not waive payment of fees or expenses for witnesses.” Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993). More specifically, “[t]he plain language of [S]ection 1915 does not provide for the appointment of expert witnesses to aid an indigent litigant.” Pedraza v. Jones, 71 F.3d 194, 196 (5th Cir. 1995); accord, Boring v. Kozakiewicz, 833 F.2d 468, 474 (3d Cir. 1987), cert. denied, 485 U.S. 991 (1988) (district court has no authority under Section 1915 to pay or waive expert witness fees in civil damage suits). However, should the court later determine that a neutral medical expert is necessary in this action, it may appoint such expert and assess the costs as the court deems appropriate. See Fed.R.Evid. 706(a); Walker v. American Home Shield Long Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999). Accordingly, plaintiff's motion for a medical expert is denied without prejudice.

         WITNESSES

         Plaintiff has identified four potential witnesses in this action and requests that the court allow him to present these witnesses during the course of this litigation and at trial, by video-conference if necessary. See ECF No. 89. The identified witnesses are two physicians, Dr. McAlpine and Dr. Mitchell, and two prisoners, Mr. Kaufman and Mr. Christianson. For the reasons previously stated by this court when plaintiff sought assistance in locating and obtaining the testimony of Dr. McAlpine, plaintiff's motion is denied without prejudice. See ECF No. 87 (copy attached).

         Plaintiff is again informed that he is responsible for the costs associated with his discovery requests and subpoenas, including deposition subpoenas, and therefore is again encouraged to obtain written declarations from his medical witnesses; these declarations could be used before trial in responding to any dispositive motion that may be filed earlier in this case. (Plaintiff has already provided the declarations of Mr. Kaufman and Mr. Christianson, see ECF No. 89 at 5-6, although each declaration would benefit from greater detail.) Should this case proceed to trial, plaintiff will have an opportunity to obtain the trial attendance of his witnesses; however, he will be required to compensate these physicians for their time and expenses.

         LEAVE TO AMEND

         Plaintiff moves for leave to further amend his complaint. See ECF No. 90. The Clerk of Court provisionally filed plaintiff's proposed amended complaint. ECF No. 91. Plaintiff seeks amendment to add the following proposed state law claims, see ECF No. 90 at 4: California Government Code § 84406 [sic] (Cal. Govt. Code § 884.06(d) (authorizing negligence liability of public employees for injuries to prisoners due to medical malpractice); id., § 845.6 (same, entitled “medical care for prisoners”); Cal. Health & Safety Code § 124960(b) (“Inadequate treatment of acute and chronic pain originating from cancer or noncancerous conditions is a significant health problem.”); and id., § 124960(d) (“A patient suffering from severe chronic intractable pain should have access to proper treatment of his or her pain.”); Cal. Code Regs. tit. 15, § 3350 (CDCR regulations re. provision of medical care to prisoners); and Cal. Const., Art. I (declaration of rights). Defendants have filed statements of opposition to plaintiff's motion to proceed on his proposed further amended complaint. ECF Nos. 93, 94.

         Rule 15, Federal Rules of Civil Procedure, allows amendment of a pleading upon leave of court “when justice so requires.” Fed.R.Civ.P. 15(a)(2). This standard accords considerable discretion to the district courts. “[A] federal court has jurisdiction over an entire action, including state-law claims, whenever the federal-law claims and state-law claims in the case ‘derive from a common nucleus of operative fact' and are ‘such that [a plaintiff] would ordinarily be expected to try them all in one judicial proceeding.'” Carnegie-Mellon University v. Cohill, 484 U.S. 343, 349 (1988) (quoting Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966)). “Under Gibbs, a federal court should consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction over a case brought in that court involving pendent state-law claims.” Cohill, 484 U.S. at 350. On a motion for leave to amend a federal action to add state law claims, the court must carefully consider whether the proposed state law claims meet the pleading requirements of Rule 8, Federal Rules of Civil Procedure. See Fed.R.Civ.P. 8(a).

         There are several problems with plaintiff's proposed amended complaint. First, the list of proposed state law claims does not include allegations describing how each named defendant allegedly violated those provisions. While plaintiff's assessment could perhaps be inferred by examining the challenged conduct of each defendant, that is not the role of this court or of defendants. Because plaintiff has failed to allege with specificity how each defendant violated one or more of the cited state provisions, his separately filed legal citations fail to meet minimum pleading requirements. See Fed.R.Civ.P. 8(a).

         Second, plaintiff has not demonstrated compliance with the California Tort Claims Act, which is required before bringing a state negligence claim. Under California law, the timely presentation of a claim under the California Tort Claims Act is a condition precedent for suit and therefore an element of the cause of action that must be pled in the complaint. See Shirk v. Vista Unified Sch. District, 42 Cal.4th 201, 209 (Cal. 2007) (citations omitted). The proposed amended complaint does not so plead.

         Third, review of the 13-page proposed amended complaint demonstrates that it not only fails to include the proposed state law claims but also fails to include page 8 of the otherwise nearly identical operative complaint. The proposed amended complaint also improperly includes previously dismissed defendants. Although the proposed amended complaint correctly identifies the Eastern District Court of California (rather than the Northern District, where this case was originally filed), this correction is not necessary for this case to continue proceeding in this court. An attached two-page “memorandum” seeks to add general state law negligence claims and to obtain injunctive relief (“to reinstitute previous prescription” and “get help with his ongoing pain and suffering”). ECF No. 91 at 10-1. However, these additions do not remedy the deficiencies in plaintiff's proposed amended complaint.

         For all these reasons, plaintiff's motion for leave to file his proposed ...


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