(PC) Ross v. Tortorice ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 DAVID ROSS, Case No. 1:20-cv-01000-BAK (BAM) (PC) 11 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF 12 v. COUNSEL FOR DEPOSITION ONLY (ECF No. 29) 13 S. TORTORICE, 14 Defendant. 15 16 Plaintiff David Ross (“Plaintiff”) is a state prisoner proceeding pro se and in forma 17 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on 18 Plaintiff’s second amended complaint against Defendant S. Tortorice (“Defendant”) for deliberate 19 indifference to serious medical needs in violation of the Eighth Amendment. 20 I. INTRODUCTION 21 On March 14, 2022, Plaintiff filed “Plaintiff’s Request for an Attorney’s Representation 22 for the Deposition Only.” (ECF No. 29.) Plaintiff declares he has “received 100% assistance from 23 fellow inmates in preparation and prosecution of” his lawsuit and that he is “totally unaware of 24 ANY of the procedures necessary to maintain” the lawsuit. (Id. at 2, ¶ 2.) Plaintiff also declares 25 that, due to deteriorating health problems, he will “have extreme difficulty communicating” as his 26 “pain becomes unbearable when even thinking about medical issues.” (Id. at 2, ¶ 3.) Plaintiff 27 declares he feels he would “be at a great disadvantage at the upcoming Deposition” and “will 28 certainly not be able to make useful responses,” suffering “the loss of [his] suit as a direct result 1 of [his] ailing and painful conditions.” (Id. at 2, ¶ 4.) He asks the Court to recognize his 2 “disadvantage” and to realize Plaintiff would have never made it this far without the assistance of 3 “an inmate with a typewriter.” (Id.) Plaintiff further declares he is to be transferred to another 4 facility “in the very near future” and will likely “be at a different prison come April 7th” and not 5 having regained “possession of his legalwork” as a result. (Id. at 2, ¶ 5.) 6 II. DISCUSSION 7 Plaintiffs do not have a constitutional right to appointed counsel in § 1983 actions. Rand v. 8 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997). Nor can the Court require an attorney to represent 9 a party under 28 U.S.C. 1915(e)(1). See Mallard v. U.S. Dist. Court, 490 U.S. 296, 304-05 10 (1989). However, in “exceptional circumstances,” the Court may request the voluntary assistance 11 of counsel pursuant to § 1915(e)(1). Rand, 113 F.3d at 1525. 12 Given the Court has no reasonable method of securing and compensating counsel, the 13 Court will seek volunteer counsel only in extraordinary cases. In determining whether 14 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 15 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 16 complexity of the issues involved.” Rand, 113 F.3d at 1525. 17 The Court does not find the required exceptional circumstances in the present case. Even 18 assuming Plaintiff is not well versed in the law and is benefitting from the assistance of other 19 inmates, and even acknowledging the serious allegations Plaintiff has made, that, if proven, 20 would entitle Plaintiff to relief, his case is not extraordinary. 21 Specifically, Plaintiff alleges in his second amended complaint that he suffers from 22 chronic pain due to carpal tunnel syndrome, cervical radicular pain, cervical spinal stenosis, 23 chronic neck, back and knee pain, and other ailments, and asserts a claim of deliberate 24 indifference. (ECF No. 13 at 3-8.) However, Plaintiff is advised the Court is faced with 25 numerous, similar cases almost daily. The majority of pro se litigants proceeding in this Court are 26 novice in the practice of law. It is likely a number of those litigants also benefit from the 27 assistance of another inmate. But the inability of another inmate to assist Plaintiff at his upcoming 28 deposition does not amount to exceptional circumstances warranting the appointment of counsel. 1 Nor, despite Plaintiff’s declaration asserting a need for assistance due to difficulty communicating 2 because of his pain, has Plaintiff demonstrated he is unable to sufficiently prosecute his case 3 considering the complexity of the legal issues involved. Rand, 113 F.3d at 1525. Indeed, the 4 question of severity of Plaintiff’s health problems and the pain those problems cause lies at the 5 heart of Plaintiff’s substantive claim. Moreover, the appointment of counsel would not serve to 6 allow Plaintiff to avoid answering questions at his forthcoming deposition. Nor would it 7 somehow serve to allow appointed counsel to formulate answers and respond on Plaintiff’s behalf 8 to questions posed at his forthcoming deposition. 9 In addition, at this stage of the proceedings, the Court cannot determine whether Plaintiff 10 is likely to succeed on the merits. Rand, 113 F.3d at 1525. In fact, the discovery currently being 11 conducted by the parties, pursuant to the February 2022 Discovery and Scheduling Order (ECF 12 No. 25), is designed to aid the parties in exploring Plaintiff’s claim. 13 Plaintiff’s contention concerning an impending facility transfer and the accompanying 14 loss of legal paperwork is speculative and does not change the Court’s analysis. 15 In sum, the Court finds there are no exceptional circumstances that warrant the 16 appointment of counsel at this time. 17 III. CONCLUSION AND ORDER 18 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motion to appoint counsel for 19 the purpose of his forthcoming deposition is DENIED. 20 IT IS SO ORDERED. 21 22 Dated: March 23, 2022 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28