Evans v. Tilton et al

Filing 44

ORDER DENYING 33 Motions to Appoint Counsel ; ORDER DENYING 31 36 Motions for Medical Examination at Government Expense; ORDER DENYING 37 Request for Hearing signed by Magistrate Judge Dennis L. Beck on 9/16/2009. (Figueroa, O)

1 2 3 4 5 EASTERN DISTRICT OF CALIFORNIA 6 7 JOHNNY EARL EVANS, 8 Plaintiff, 9 v. 10 TILTON, et al., 11 Defendants. 12 13 14 15 16 Plaintiff Johnny Earl Evans ("Plaintiff") is a state prisoner proceeding pro se in this civil 17 rights action pursuant to 42 U.S.C. § 1983. This action is proceeding against defendants Zamora and 18 Youssef for violation of Plaintiff's rights under the Eighth Amendment of the United States 19 Constitution concerning his medical care. Pending before the Court are Plaintiff's motions for 20 appointment of counsel and for a medical examination at government expense. 21 Request for Hearing 22 Plaintiff has requested a court hearing. (Doc. 35.) Plaintiff is informed that motions for 23 appointment of counsel and for a medical examinations, where one party is incarcerated and 24 proceeding in forma pauperis, are submitted upon the record without oral argument. Local Rule 7825 230(m). Oral argument is not required and the request for a court hearing is denied. 26 Motions for Appointment of Counsel 27 On June 15, 2009 and July 29, 2009, plaintiff filed motions seeking the appointment of 28 1 ORDER DENYING MOTIONS FOR MEDICAL EXAMINATION AT GOVERNMENT EXPENSE (Docs. 31 and 36) ORDER DENYING REQUEST FOR HEARING / (Doc. 35) (Docs. 33, 37) ORDER DENYING MOTIONS FOR APPOINTMENT OF COUNSEL CASE NO. 1:07-cv-01814-LJO-DLB PC

UNITED STATES DISTRICT COURT

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counsel. Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain exceptional circumstances the court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. Without a reasonable method of securing and compensating counsel, the court will seek volunteer counsel only in the most serious and exceptional cases. In determining whether "exceptional circumstances exist, the district court must evaluate both the likelihood of success of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues involved." Id. (internal quotation marks and citations omitted). In the present case, the court does not find the required exceptional circumstances. Even if it is assumed that plaintiff is not well versed in the law and that he has made serious allegations which, if proved, would entitle him to relief, his case is not exceptional. This court is faced with similar cases almost daily. Further, at this early stage in the proceedings, the court cannot make a determination that plaintiff is likely to succeed on the merits, and based on a review of the record in this case, the court does not find that plaintiff cannot adequately articulate his claims. Id. For the foregoing reasons, plaintiff's motions for the appointment of counsel are HEREBY DENIED, without prejudice. Motions for Medical Examination On June 4, 2009 and July 29, 2009, Plaintiff filed motions requesting an examination by an orthopedic surgeon. Plaintiff states that he is indigent and cannot afford to pay for an examination. The expenditure of public funds on behalf of an indigent litigant is proper only when authorized by Congress. Tedder v. Odel, 890 F.2d 210 (9th Cir. 1989) (citations omitted). The in forma pauperis statute does not authorize the expenditure of public funds for a medical examination by a orthopedic surgeon. 28 U.S.C. § 1915. Plaintiff's requests must be denied. IT IS SO ORDERED. Dated: 3b142a

September 16, 2009

/s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 2