Huckabee v. Medical Staff at CSATF et al

Filing 74

ORDER Denying Plaintiff's Motion For Appointment Of Counsel (ECF No. 73 ), signed by Magistrate Judge Barbara A. McAuliffe on 8/19/2013. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANTHONY CRAIG HUCKABEE,

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Plaintiff,
v.
MEDICAL STAFF at CSATF, et al.,

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Defendants.

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) Case No.: 1:09-cv-00749-LJO-BAM PC
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) ORDER DENYING PLAINTIFF’S MOTION FOR
) APPOINTMENT OF COUNSEL (ECF No. 73.)
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I.

Background

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Plaintiff Anthony Craig Huckabee (“Plaintiff”), a state prisoner, initiated this civil rights action

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pursuant to 42 U.S.C. § 1983 on April 28, 2009. This action proceeds on Plaintiff’s second amended

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complaint, filed on August 21, 2012, for (1) deliberate indifference to a serious medical need in

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violation of the Eighth Amendment against Defendants Diaz, McGuiness, Wu, Bhatt, Nguyen, Garcia,

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Jimenez, Jeffreys, Chief Medical Officer at CSATF, and Chief Pharmacist at CSATF; (2) negligence

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against Defendants Diaz, Jeffreys, Jimenez; (3) medical malpractice against Defendants McGuiness,

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Wu, Bhatt and Nguyen; (4) violation of the Unruh Civil Rights Act, California Civil Code § 51,

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against all defendants; and (5) negligent infliction of emotional distress against all defendants.

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On July 26, 2013, the Court granted appointed counsel’s motion to withdraw and substituted

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Plaintiff in pro se. (ECF No. 64.) Thereafter, the Court directed Plaintiff to either file a motion for the

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appointment of counsel or a statement that he does not request the appointment of counsel. (ECF No.
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65.) On August 14, 2013, Plaintiff filed the instant motion for the appointment of counsel. (ECF No.

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73.)

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II.

Legal Standard

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Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent

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plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern

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District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain exceptional

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circumstances the court may request the voluntary assistance of counsel pursuant to section

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1915(e)(1). Rand, 113 F.3d at 1525.

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Without a reasonable method of securing and compensating counsel, the court will seek

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volunteer counsel only in the most serious and exceptional cases. In determining whether

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“exceptional circumstances exist, a district court must evaluate both the likelihood of success of the

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merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the

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legal issues involved.” Id. (internal quotation marks and citations omitted).

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III.

Discussion

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Plaintiff believes this court should appoint counsel because (1) he is proceeding in forma

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pauperis, (2) his case is difficult and presents complex issues, (3) his case could depend on cross-

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examination and the credibility of defendants and witnesses, (4) medical expert testimony will be

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necessary, (5) he is in prison and (6) he has medical issues, including blindness in his left eye and

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daily headaches evolving into debilitating migraines. Plaintiff indicates that his migraines cause

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nausea, blindness in the right eye and seizures and they are triggered by noise and concentration of

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Plaintiff’s vision on things such as computer and television screens and reading. (ECF No. 73, p. 2.)

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The Court has considered Plaintiff’s motion for the appointment of counsel, but does not find

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the required exceptional circumstances. Even if it is assumed that Plaintiff is not well versed in the

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law and that he has made serious allegations which, if proved, would entitle him to relief, his case is

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not exceptional. This Court is faced with similar cases involving claims of deliberate indifference to

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serious medical needs filed by prisoners proceeding in forma pauperis and suffering various medical

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conditions almost daily. While Plaintiff’s assertions regarding his medical condition are taken into
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consideration, the record indicates that Plaintiff has been able to articulate his position thoroughly,

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most recently in his briefing on counsel’s motion to withdraw and his request for counsel. Although

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the Court previously appointed counsel in this matter, it no longer appears that Plaintiff requires such

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assistance. Further, at this stage in the proceedings, the Court cannot make a determination that

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Plaintiff is likely to succeed on the merits, and based on the record in this case, the Court does not find

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that Plaintiff cannot adequately articulate his claims. Id.

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For the foregoing reasons, Plaintiff’s motion for the appointment of counsel is HEREBY

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DENIED without prejudice. Plaintiff is reminded that, as necessary and appropriate, he may seek

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extensions of time for relevant case deadlines. Fed. R. Civ. P. 6(b)(1).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

August 19, 2013

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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