(PC) Bowcut v. Daram ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DONALD RAY BOWCUT, No. 2:21-cv-00736 DB P 12 Plaintiff, 13 v. ORDER 14 VASUKI DARAM, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with this civil rights 18 action seeking relief pursuant to 42 U.S.C. § 1983. Plaintiff claims defendants were deliberately 19 indifferent to his serious medical needs in violation of his Eighth Amendment rights. Presently 20 before the court are plaintiff’s motions for the appointment of counsel. 21 Plaintiff has filed four motions requesting the appointment of counsel. (ECF Nos. 43, 44, 22 49, 50.) In support of his motions, he cites 18 U.S.C. § 3006A(a)(2)(B) and 28 U.S.C. § 1919(d), 23 (e)(1) and argues that counsel should be appointed in the interest of justice. (ECF No. 43 at 1-2.) 24 He further states the appointment of counsel is warranted “[b]ased on ‘Good Cause’ of showing 25 exceptional circumstances demonstrating ‘the interests of justice so require’ the appointment of 26 counsel.” (Id. at 2.) Plaintiff has included a declaration written by a fellow inmate stating that 27 the inmate has been assisting plaintiff, plaintiff does not have the cognitive abilities to 28 comprehend and understand his own legal papers because plaintiff suffers from brain damage. 1 (Id. at 3-4.) The inmate goes on to state that he cannot assist plaintiff because one of the 2 defendants in this action is the inmate’s primary care physician. (Id. at 4.) The inmate further 3 argues that limited law library access and the complexities of the case support the appointment of 4 counsel. (Id. at 5-7.) 5 Plaintiff filed an identical request for counsel and declaration with additional exhibits 6 containing some of plaintiff’s medical reports attached. (ECF No. 44.) Plaintiff’s third motion to 7 appoint counsel appears virtually identical to the first motion to appoint counsel. (ECF No. 49.) 8 In support of his fourth motion to appoint counsel plaintiff argues, counsel should be 9 appointed because an attorney who represented plaintiff in prior criminal proceedings has stated 10 that based on the attorney’s personal knowledge of plaintiff, plaintiff is not capable of researching 11 or preparing pleadings in any legal proceeding. (ECF No. 50 at 2.) Plaintiff further states that he 12 could demonstrate the allegations in the complain show defendants are not entitled to summary 13 judgment with the assistance of counsel. (Id. at 3.) Correspondence with an attorney who 14 previously represented plaintiff in criminal proceedings is attached as exhibits to the motion. The 15 declaration from the inmate assisting plaintiff attached to the other motions to appoint counsel 16 was also included in the motion to appoint counsel. 17 The United States Supreme Court has ruled that district courts lack authority to require 18 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 19 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 20 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 21 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 22 The test for exceptional circumstances requires the court to evaluate the plaintiff’s 23 likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 24 light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 25 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 26 common to most prisoners, such as lack of legal education and limited law library access, do not 27 establish exceptional circumstances that would warrant a request for voluntary assistance of 28 counsel. 1 In the present case, the court does not find the required exceptional circumstances. 2 | Circumstances common to most inmates, such as lack of legal education and limited law library 3 | access, do not establish exceptional circumstances that would warrant a request for voluntary 4 | assistance of counsel. Mental impairment may be grounds for appointment of counsel in certain 5 || situations, but the impairment must be an “incapacitating mental disability” and the plaintiff 6 | “must present substantial evidence of incompetence.” Meeks v. Nunez, No. 13CV973-GPC 7 | (BGS), 2017 WL 476425, at *3 (S.D. Cal. Feb. 6, 2017). The court must be able to find a nexus 8 | between the mental disorder and the plaintiff's ability to articulate his claims. See McElroy v. 9 | Cox, No. 08-1221 JM (AJB), 2009 WL 4895360, at *3 (E.D. Cal. Dec. 11, 2009). 10 Here, plaintiff has alleged that his cognitive abilities do not allow him to effectively 11 | litigate this action. However, the court does not find such information sufficient to warrant the 12 || appointment of counsel. In any renewed motion, plaintiff must present evidence showing that his 13 | mental impairment is such that he cannot proceed pro se. See Jones v. Kuppinger, No. 2:13-cv- 14 | 0451 WBS ACP, 2015 WL 5522290, at *3-4 (E.D. Cal. Sept. 17, 2015) (“Circumstances 15 | common to most prisoners, such as a deficient general education, lack of knowledge of the law, 16 | mental illness and disability, do not in themselves establish exceptional circumstances warranting 17 | appointment of voluntary civil counsel.”). Accordingly, the undersigned will deny the motion 18 without prejudice. 19 For the reasons set forth above, IT IS HEREBY ORDERED that plaintiff's motions for 20 | the appointment of counsel (ECF Nos. 43, 44, 49, 50) are denied without prejudice. 21 | Dated: December 12, 2023 23 A ORAH BARNES UNITED STATES MAGISTRATE JUDGE 25 26 27 28 DBD Prisoner Inbox/Civil Rights/R/bowc0736.31