Ahdom v. Lopez et al
Filing
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ORDER Denying Plaintiff's Motion to Appoint Counsel without Prejudice 134 ; ORDER Directing Plaintiff to File his Responses to the Pending Motions to Dismiss within Thirty Days, signed by Magistrate Judge Barbara A. McAuliffe on 2/12/15. (Verduzco, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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) 1:09-cv-01874-AWI-BAM (PC)
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Plaintiff,
) ORDER DENYING PLAINTIFF’S MOTION
) TO APPOINT COUNSEL WITHOUT
v.
) PREJUDICE
) (ECF No. 134)
S. LOPEZ, et al.,
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) ORDER DIRECTING PLAINTIFF TO FILE
Defendants.
) HIS RESPONSES TO THE PENDING
) MOTIONS TO DISMISS WITHIN THIRTY
) DAYS
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)
______________________________________________________________________________
I.
Procedural Background
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Plaintiff Bilal Ahdom (“Plaintiff”), a state prisoner proceeding pro se and in forma
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pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds against
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Defendants Araich, Chen, Shittu, Ashby, S. Lopez, Spaeth and Schaefer for deliberate
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indifference to Plaintiff’s medical needs in violation of the Eighth Amendment to the United
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States Constitution.
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BILAL AHDOM,
On December 2, 2013, Defendants filed three separate motions to dismiss. On December
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26, 2013, Plaintiff requested an extension of time to file his oppositions to the motions to
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dismiss. The Court granted his request and Plaintiff’s oppositions to the motions to dismiss were
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due on or before February 13, 2014. (ECF No. 99.) On February 13, 2014, Plaintiff requested a
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second extension of time to file his oppositions to the motions to dismiss. The Court granted his
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request and Plaintiff’s oppositions to the motions to dismiss were due on or before March 17,
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2014. (ECF No. 104.)
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On April 3, 2014, Plaintiff filed a motion for temporary restraining order. Following
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denial of his motion, Plaintiff submitted an interlocutory appeal to the Ninth Circuit Court of
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Appeals. On October 1, 2014, the Ninth Circuit granted Plaintiff’s request for voluntary
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dismissal of his interlocutory appeal and issued its mandate. (ECF No. 130.)
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On October 6, 2014, the Court ordered Plaintiff to file an opposition or statement of nonopposition to Defendants’ motions to dismiss within twenty-one (21) days. (ECF No. 131.)
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In lieu of an opposition, Plaintiff filed a motion requesting a thirty-day extension of time
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to prepare and file a motion for the appointment of counsel. Plaintiff asserted that he was not
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capable of prosecuting this action because of his physical and cognitive functioning. Plaintiff
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reportedly had a stroke, is confined to a wheelchair, experiences severe lumbar pain for which he
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is taking high doses of morphine and needs assistance with day-to-day activities. (ECF No. 132.)
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On November 3, 2014, the Court granted Plaintiff a thirty-day extension of time to file a
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motion for appointment of counsel supported by current medical records or prison chronos
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detailing his current mental and physical functioning. The Court granted Plaintiff a
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corresponding extension of time to file his oppositions to the pending motions to dismiss. (ECF
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No. 133.)
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On November 21, 2014, Plaintiff filed the instant motion for the appointment of counsel.
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(ECF No. 134.) Defendants did not respond and the motion is deemed submitted. Local Rule
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230(l).
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II.
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As Plaintiff previously has been informed, he does not have a constitutional right to
Discussion
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appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the
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court cannot require an attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1).
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Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298, 109
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S.Ct. 1814, 1816 (1989). However, in certain exceptional circumstances the court may request
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the voluntary assistance of counsel pursuant to section 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, the district court must evaluate both the likelihood of success
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on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the
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complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted).
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Here, Plaintiff contends that he is incapable of functioning at a normal cognitive level
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because he takes a high-dose of Morphine twice daily to manage the chronic pain of his spinal
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injury. Plaintiff believes that he cannot research, prepare or comprehend the issues before this
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Court. He has had to obtain assistance from untrained inmates to litigate this case. Plaintiff also
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contends that he has limited physical capacity, including limited use of his right upper extremity
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due to stroke. Plaintiff also requires assistance with meal access and moving within the
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institution. Plaintiff requires a wheelchair, wheelchair accessible tables, a back brace, an extra
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mattress, and a trapeze bar to get in and out of the wheelchair.
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According to exhibits attached to Plaintiff’s moving papers, as of September 9, 2014, he
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has a back brace, wheelchair and trapeze bar and requires assistance with meal access and other
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movement inside the prison. (ECF No. 134, p. 10, Ex. B.) He may work if he sits, but has
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limited use of his right upper extremity. (Id.) A medication record, which expired November
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2014, indicated that Plaintiff was taking 15 mg of Morphine every evening and 30 mg of
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Morphine every morning. (ECF No. 134, p. 8, Ex. A.) Plaintiff reports that he continues to take
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this medication.
The Court has considered Plaintiff’s moving papers and supporting documents. Despite
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Plaintiff’s apparent limitations, the pleadings and motions on file at this juncture indicate that
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Plaintiff can adequately articulate his claims with the assistance of other prisoners, including his
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current prisoner-paralegal assistant. (ECF No. 134, p. 5; ECF No. 132, p. 2.) Further, at this
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stage of the proceedings, the Court cannot make a determination that Plaintiff is likely to succeed
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on the merits. Rand, 113 F.3d at 1525.
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III.
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For the reasons stated, Plaintiff’s motion for the appointment of counsel is HEREBY
Conclusion and Order
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DENIED without prejudice. Plaintiff is not precluded from renewing his motion for the
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appointment of counsel in the future.
It is FURTHER ORDERED that Plaintiff’s oppositions, if any, to the pending motions to
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dismiss, shall be served and filed within thirty (30) days following service of this order. If
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Plaintiff fails to comply with this order, this action may be dismissed for failure to obey a court
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order.
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IT IS SO ORDERED.
Dated:
/s/ Barbara
February 12, 2015
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A. McAuliffe
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UNITED STATES MAGISTRATE JUDGE
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