(PC) Mosley v. Ma ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DIMITRIC MOSLEY, No. 2:16-cv-0945 WBS AC P 12 Plaintiff, 13 v. ORDER 14 DR. MA, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se and in forma pauperis with this civil rights 18 action, requests appointment of counsel. Plaintiff states that he is indigent; is currently housed in 19 administrative segregation with limited access to the prison law library; has never been a party to 20 a civil legal proceeding; that the issues in this case are complex and a lawyer would help plaintiff 21 apply the law properly in his briefs before this court; and that a lawyer would assist in the 22 presentation of evidence and cross-examination of witnesses at trial. 23 This is plaintiff’s first request for appointment of counsel. He has no other cases pending 24 in this court. The instant case proceeds against two defendants on plaintiff’s Eighth Amendment 25 claims for deliberate indifference to his serious medical needs. The court referred this case to its 26 Post-Screening ADR (Alternative Dispute Resolution) Project, ECF No. 19, but defendants 27 requested to opt out of the project, ECF No. 20, and the request was granted, ECF No. 21. 28 Thereafter, on October 2, 2019, the court issued a Discovery and Scheduling Order, setting a 1 || discovery deadline of January 31, 2020, and a motion deadline of May 1, 2020. ECF No. 27. 2 The Supreme Court has held that district courts lack authority to require counsel to 3 || represent indigent prisoners in Section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 4 | 296, 298 (1989). In certain exceptional circumstances, a court may request that an attorney 5 || voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 6 | 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 7 | When determining whether “exceptional circumstances” exist, the court must consider plaintiff’ s 8 || likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro 9 || se in light of the complexity of the legal issues involved. See Palmer v. Valdez, 560 F.3d 965, 10 | 970 (9th Cir. 2009). The burden of demonstrating exceptional circumstances is on plaintiff. 11 | Circumstances common to most prisoners, such as indigency, lack of legal education and limited 12 || law library access, do not establish exceptional circumstances warranting the appointment of 13 | voluntary counsel. Id. 14 In the present case, plaintiff's reasons for seeking appointment of counsel reflect 15 || circumstances common to most prisoners. Moreover, the factual and legal issues are relatively 16 | limited in this case, involving the alleged failure of one physician and one nurse to properly treat 17 || an injury to plaintiff’s right hand. These fairly straight forward factual allegations are buttressed 18 | by plaintiffs demonstrated ability to articulate his claims pro se. It remains unclear whether this 19 | case will go to trial. For these reasons, the court finds that plaintiff has not demonstrated 20 || exceptional circumstances warranting the appointment of counsel at the present time. 21 Accordingly, IT IS HEREBY ORDERED that plaintiffs motion for appointment of 22 || counsel, ECF No. 29, is DENIED without prejudice. 23 || DATED: December 30, 2019 ~ 24 CtAt0r2— Chane ALLISON CLAIRE 25 UNITED STATES MAGISTRATE JUDGE 26 27 28