(PC) Lopez v. Brown ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ADAM R. LOPEZ, No. 1:17-cv-00343-DAD-GSA (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING 14 DR. BROWN, et al., PLAINTIFF’S REQUEST FOR APPOINTMENT OF COUNSEL AND 15 Defendants. DISMISSING THIS CASE, WITH PREJUDICE, FOR FAILURE TO STATE A 16 CLAIM 17 (Doc. Nos. 21, 22) 18 19 20 Plaintiff Adam R. Lopez is a state prisoner proceeding pro se and in forma pauperis with 21 this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States 22 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 23 On August 5, 2019, the assigned magistrate judge issued findings and recommendations, 24 recommending that plaintiff’s request for appointment of counsel be denied and this case be 25 dismissed due to plaintiff’s failure to state a claim upon which relief may be granted under §1983. 26 (Doc. No. 22.) On August 20, 2019, plaintiff filed objections to those findings and 27 recommendations. (Doc. No. 23.) 28 ///// 1 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this 2 court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 3 court finds the findings and recommendations to be supported by the record and proper analysis. 4 Plaintiff’s objections are largely a recitation of the facts alleged in his second amended 5 complaint. (Doc. No. 23.) Plaintiff does add an assertion that the reason defendants Brown and 6 Jackson denied him medical care was the cost involved in providing such care. (Id. at 2.) 7 However, even were this additional conclusory allegation advanced in a third amended complaint, 8 it would not change the fact that plaintiff has failed to allege any specific facts showing that 9 defendants acted with deliberate indifference to his serious medical needs. Additionally, plaintiff 10 now takes issue with the medical staff as a whole at the institution of his confinement for 11 allegedly being inadequate over the three-year period at issue in this action. (Id. at 3.) This 12 objection is without merit, however, since plaintiff has not brought, nor could he bring, a claim 13 against the medical staff as a whole at his institution of confinement. 14 Lastly, plaintiff objects on the grounds that despite his best efforts, he has unable to 15 litigate the complex issues he seeks to raise without the appointment of counsel. (Id.) Plaintiff 16 does not have a constitutional right to appointment of counsel in this § 1983 action. See Rand v. 17 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (“There is no constitutional right to appointed 18 counsel in a § 1983 action.”), withdrawn on other grounds on reh’g en banc, 154 F.3d 952 (9th 19 Cir. 1998). “However, in ‘exceptional circumstances,’ a district court may appoint counsel for 20 indigent civil litigants pursuant to 28 U.S.C. § 1915(d).” Id. The court determines whether such 21 exceptional circumstances exist by evaluating the likelihood of success on the merits and the 22 petitioner’s ability to articulate his claims in light of the complexity of the legal issues involved. 23 Id. As the assigned magistrate judge noted in the pending findings and recommendations, the 24 claims presented by plaintiff in this action are not particularly complex, “and a review of the 25 record shows that Plaintiff is responsive, adequately communicates, and is able to articulate his 26 claims.” (Doc. No. 22 at 5.) The undersigned agrees. Moreover, because the court dismisses 27 plaintiff’s claims by way of this order, consideration of his likelihood of success on the merits of 28 his claims also weighs against the appointment of counsel. 1 Accordingly: 2 1. The findings and recommendations issued by the assigned magistrate judge on 3 August 5, 2019 (Doc. No. 22) are adopted in full; 4 2. Plaintiff's request for appointment of counsel is denied; 5 3. This action is dismissed, with prejudice, due to plaintiff’s failure to state a claim 6 upon which relief may be granted under 42 U.S.C. § 1983; and 7 4. The Clerk of Court is directed to close this case. 8 | IT IS SOORDERED. a " 9 Li. wh F Dated: _ January 13, 2020 Sea 1" S098 10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28