(PC) O'Connor v. J. Lizarraga ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GLENN O’CONNOR, No. 2:19-cv-0658 KJM KJN P 12 Plaintiff, 13 v. ORDER 14 CALIFORNIA DEPARTMENT OF CORRECTIONS AND 15 REHABILITATION, et al., 16 Defendants. 17 18 Plaintiff is a state prisoner, proceeding pro se, in an action brought under 42 U.S.C. 19 § 1983. Pending before the court is plaintiff’s motion for appointment of counsel or, in the 20 alternative, dismissal with prejudice. (ECF No. 104.) For the reasons stated herein, plaintiff’s 21 motion for appointment of counsel is denied. Plaintiff is granted thirty days to file an opposition 22 to defendants’ summary judgment motion. 23 In the pending motion, plaintiff contends that he has tried about ten times to work on his 24 opposition to defendants’ summary judgment motion. (Id. at 1.) Plaintiff alleges that he is too 25 physically ill to prepare his opposition. (Id.) Plaintiff alleges that within minutes of spreading 26 the massive motion on the floor, he becomes overwhelmed by symptoms of diseases he suffers 27 from and puts the motion away. (Id. at 1-2.) Plaintiff alleges that he is too ill to fight such a 28 complex and massive motion. (Id. at 2.) Plaintiff alleges that he suffers from uncontrolled 1 asthma, emphysema, severe bronchiectasis, Meniere’s disease and Cushing’s disease. (Id. at 3.) 2 Plaintiff alleges that most of the time he is confined to his bed, cannot see or think clearly, loses 3 concentration and cannot recall easily. (Id.) Plaintiff states that if the court does not appoint 4 counsel then this action must be dismissed. (Id.) 5 Plaintiff alleges that on December 3, 2021, he was seen by his physician and complained 6 of near-constant vertigo. (Id. at 5.) Plaintiff alleges that the doctor stated that plaintiff has not 7 been correctly diagnosed and that he suffers from “vertiginous migraines.” (Id.) Plaintiff also 8 alleges that the doctor is seeking an immediate consultation with a neurologist. (Id. at 5-6.) 9 Plaintiff alleges that every once in a while he is well enough to go to the law library to type a 10 document (such as his current pleading), but he can never tell when an attack may happen. (Id.) 11 District courts lack authority to require counsel to represent indigent prisoners in section 12 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional 13 circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28 14 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 15 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional 16 circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as 17 well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the 18 legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not 19 abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional 20 circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of 21 legal education and limited law library access, do not establish exceptional circumstances that 22 warrant a request for voluntary assistance of counsel. 23 While the undersigned is sympathetic to plaintiff’s health problems, the undersigned finds 24 that they do not constitute exceptional circumstances warranting appointment of counsel. It 25 appears that plaintiff has suffered from most of the health problems for some time. Plaintiff filed 26 this action in 2019 and has competently litigated it since. The undersigned observes that on April 27 1, 2021, plaintiff filed a 109 pages long motion to compel (including exhibits), demonstrating his 28 ability to conduct discovery. (ECF No. 77.) On September 3, 2021, plaintiff filed a nine pages 1 || long typed reply to defendants’ opposition to his supplemental motion to compel. (ECF No. 94.) 2 In considering plaintiff's request for appointment of counsel, the undersigned has also 3 || reviewed defendants’ summary judgment motion. In this action, plaintiff alleges that he uses a 4 | CPAP machine to treat his sleep apnea. Plaintiff alleges that defendants denied his request for 5 || continuous power for his CPAP machine. In the summary judgment motion, defendants argue 6 || that plaintiff failed to exhaust administrative remedies. Defendants also move for summary 7 || judgment on the merits of plaintiffs claim. Defendants argue that plaintiff did not face a serious 8 | risk of harm from not using his CPAP machine on any day when his housing unit experienced a 9 || power outage. Defendants also argue that they did not act with deliberate indifference to a 10 || substantial risk of serious harm related to power outages. 11 Having considered the factors under Palmer, the court finds that plaintiff failed to meet his 12 | burden of demonstrating exceptional circumstances warranting the appointment of counsel at this 13 | time. Accordingly, plaintiff's motion for appointment of counsel is denied. Plaintiff is granted 14 | thirty days to file an opposition to defendants’ summary judgment motion. If plaintiff does not 15 || file an opposition within that time, the undersigned will consider plaintiff's request to voluntarily 16 || dismiss this action with prejudice. 17 Accordingly, IT IS HEREBY ORDERED that: 18 1. Plaintiff's motion for the appointment of counsel (ECF No. 104) is denied; 19 2. Plaintiffis granted thirty days from the date of this order to file an opposition to 20 defendants’ summary judgment motion. 21 | Dated: January 3, 2022 2 Aectl Aharon 23 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 24 || ocon0658.31 25 26 27 28