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Gamez v. United States

United States District Court, D. Arizona

November 13, 2018

Robert Carrasco Gamez, Jr., Plaintiff,
v.
United States of America, et al., Defendants.

          ORDER

          EILEEN S. WILLETT UNITED STATES MAGISTRATE JUDGE.

         This Order sets forth the Court's rulings on a number of pending Motions (Docs. 207, 209, 212, 216, 217, 219, 221, 225, 239).

         I. DISCUSSION

         A. Plaintiff's “Motion to Stay Proceedings [until] Arizona Department of Corrections (‘ADC') has fixed Electronic Filing Program” (Doc. 207)

         In his September 21, 2018 Motion, Plaintiff indicates that as a result of technological issues with respect to the electronic filing program, he did not receive a copy of the Court's August 29, 2018 Order (Doc. 185). That Order set September 19, 2018 as the deadline for Plaintiff to file, in accordance with Ariz. Rev. Stat. § 12-2603(A), a written certification stating whether expert testimony is necessary to prove the healthcare professional standard of care for his medical malpractice claim in Count Three of the Third Amended Complaint. The Court subsequently issued another Order extending the deadline to October 5, 2018 after it became aware that Plaintiff may not have timely received the Court's August 29, 2018 Order. (Doc. 208). Plaintiff's Motion (Doc. 207) will be denied as moot.

         B. Plaintiff's “Motion to Enforce Court Ruling (‘dkt. 143')” (Doc. 209)

         In his September 26, 2018 Motion, Plaintiff requests “that USMS service packets be prepared for Osgood, Ducey, T. Taylor and Marquis Software.” (Doc. 209 at 3). Pursuant to the Court's Order (Doc. 143), Defendants filed under seal the last known address for Defendant Osgood. (Doc. 153). A service packet was prepared and forwarded to the U.S. Marshals Service (“USMS”). On September 13, 2018, service was returned unexecuted as to Defendant Osgood. (Doc. 198). Plaintiff's Motion (Doc. 209) is denied as moot as to Defendant Osgood. Plaintiff's Motion is denied as to Ducey, T. Taylor, and Marquis Software as they are not Defendants in this action.[1]

         C. Plaintiff's “Motion to Appoint Counsel (‘Third Request')” (Doc. 212)

         The Court has reviewed Plaintiff's third Motion to Appoint Counsel (Doc. 212). As previously explained to Plaintiff (Doc. 10 at 12), there is no constitutional right to the appointment of counsel in a civil case. See Johnson v. U.S. Dep't of Treasury, 939 F.2d 820, 824 (9th Cir. 1991); Ivey v. Bd of Regents of the Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982). The Court may appoint counsel for indigent civil litigants only in exceptional circumstances. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). On September 12, 2017 and May 10, 2018, the Court did not find that exceptional circumstances existed in this case that warranted the appointment of counsel. (Docs. 10, 76). Plaintiff's statements in his September 21, 2018 Motion (Doc. 212) do not alter those findings. Accordingly, the Court will deny Plaintiff's third Motion to Appoint Counsel (Doc. 212).

         D. Plaintiff's “Request to Disqualify Joseph E. Deylo as Counsel of Record for Defendant Allen and Garcia” (Doc. 216) and “Request to Disqualify the Law Office of Renaud Cook Drury Mesaros PA” (Doc. 221)

         In October 2018, Plaintiff filed two documents captioned as “Request to Disqualify Joseph E. Deylo as Counsel of Record for Defendant Allen and Garcia” (Doc. 216) and “Request to Disqualify the Law Office of Renaud Cook Drury Mesaros PA” (Doc. 221). Plaintiff previously filed a similar Request (Doc. 196) seeking to disqualify Coleen P. Schoch as counsel of record for Defendants Hughes and Jacobs, which the Court denied (Doc. 213).

         As the Court explained in its prior Order (Doc. 213 at 2), motions to disqualify counsel are “subjected to particularly strict judicial scrutiny.” Optyl Eyewear Fashion Int'l Corp. v. Style Cos., 760 F.2d 1045, 1050 (9th Cir. 1985) (quotations omitted). Disqualification is a “drastic measure which courts should hesitate to impose except when absolutely necessary.” Schiessle v. Stephens, 717 F.2d 417, 420 (7th Cir. 1983). To be justified, a motion to disqualify must be based on present concerns and not concerns which are merely anticipatory and speculative. In regarding Coordinated Pretrial Proceedings, etc., 658 F.2d 1355, 1361 (9th Cir. 1981).

         The Court does not find good cause to disqualify Joseph E. Deylo and Renaud Cook Drury Mesaros PA as counsel of record. Plaintiff's Requests (Docs. 216, 221) will be denied.

         E. Defendants Allen and Garcia's “Motion to Extend Discovery Deadline and Dispositive Motion Deadline” (Doc. 217) and Plaintiff's “Motion for Extention of Time to Complete Discovery on All ...


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