Ahdom v. Lopez et al

Filing 140

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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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 9 17 ) 1:09-cv-01874-AWI-BAM (PC) ) Plaintiff, ) ORDER DENYING PLAINTIFF’S MOTION ) TO APPOINT COUNSEL WITHOUT v. ) PREJUDICE ) (ECF No. 134) S. LOPEZ, et al., ) ) ORDER DIRECTING PLAINTIFF TO FILE Defendants. ) HIS RESPONSES TO THE PENDING ) MOTIONS TO DISMISS WITHIN THIRTY ) DAYS ) ) ) ______________________________________________________________________________ I. Procedural Background 18 Plaintiff Bilal Ahdom (“Plaintiff”), a state prisoner proceeding pro se and in forma 19 pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds against 20 Defendants Araich, Chen, Shittu, Ashby, S. Lopez, Spaeth and Schaefer for deliberate 21 indifference to Plaintiff’s medical needs in violation of the Eighth Amendment to the United 22 States Constitution. 10 11 12 13 14 15 16 23 BILAL AHDOM, On December 2, 2013, Defendants filed three separate motions to dismiss. On December 24 26, 2013, Plaintiff requested an extension of time to file his oppositions to the motions to 25 dismiss. The Court granted his request and Plaintiff’s oppositions to the motions to dismiss were 26 due on or before February 13, 2014. (ECF No. 99.) On February 13, 2014, Plaintiff requested a 27 second extension of time to file his oppositions to the motions to dismiss. The Court granted his 28 1 1 request and Plaintiff’s oppositions to the motions to dismiss were due on or before March 17, 2 2014. (ECF No. 104.) 3 On April 3, 2014, Plaintiff filed a motion for temporary restraining order. Following 4 denial of his motion, Plaintiff submitted an interlocutory appeal to the Ninth Circuit Court of 5 Appeals. On October 1, 2014, the Ninth Circuit granted Plaintiff’s request for voluntary 6 dismissal of his interlocutory appeal and issued its mandate. (ECF No. 130.) 7 8 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.) 9 In lieu of an opposition, Plaintiff filed a motion requesting a thirty-day extension of time 10 to prepare and file a motion for the appointment of counsel. Plaintiff asserted that he was not 11 capable of prosecuting this action because of his physical and cognitive functioning. Plaintiff 12 reportedly had a stroke, is confined to a wheelchair, experiences severe lumbar pain for which he 13 is taking high doses of morphine and needs assistance with day-to-day activities. (ECF No. 132.) 14 On November 3, 2014, the Court granted Plaintiff a thirty-day extension of time to file a 15 motion for appointment of counsel supported by current medical records or prison chronos 16 detailing his current mental and physical functioning. The Court granted Plaintiff a 17 corresponding extension of time to file his oppositions to the pending motions to dismiss. (ECF 18 No. 133.) 19 On November 21, 2014, Plaintiff filed the instant motion for the appointment of counsel. 20 (ECF No. 134.) Defendants did not respond and the motion is deemed submitted. Local Rule 21 230(l). 22 II. 23 As Plaintiff previously has been informed, he does not have a constitutional right to Discussion 24 appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the 25 court cannot require an attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). 26 Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298, 109 27 S.Ct. 1814, 1816 (1989). However, in certain exceptional circumstances the court may request 28 the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 2 1 Without a reasonable method of securing and compensating counsel, the court will seek 2 volunteer counsel only in the most serious and exceptional cases. In determining whether 3 “exceptional circumstances exist, the district court must evaluate both the likelihood of success 4 on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 5 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 6 Here, Plaintiff contends that he is incapable of functioning at a normal cognitive level 7 because he takes a high-dose of Morphine twice daily to manage the chronic pain of his spinal 8 injury. Plaintiff believes that he cannot research, prepare or comprehend the issues before this 9 Court. He has had to obtain assistance from untrained inmates to litigate this case. Plaintiff also 10 contends that he has limited physical capacity, including limited use of his right upper extremity 11 due to stroke. Plaintiff also requires assistance with meal access and moving within the 12 institution. Plaintiff requires a wheelchair, wheelchair accessible tables, a back brace, an extra 13 mattress, and a trapeze bar to get in and out of the wheelchair. 14 According to exhibits attached to Plaintiff’s moving papers, as of September 9, 2014, he 15 has a back brace, wheelchair and trapeze bar and requires assistance with meal access and other 16 movement inside the prison. (ECF No. 134, p. 10, Ex. B.) He may work if he sits, but has 17 limited use of his right upper extremity. (Id.) A medication record, which expired November 18 2014, indicated that Plaintiff was taking 15 mg of Morphine every evening and 30 mg of 19 Morphine every morning. (ECF No. 134, p. 8, Ex. A.) Plaintiff reports that he continues to take 20 this medication. The Court has considered Plaintiff’s moving papers and supporting documents. Despite 21 22 Plaintiff’s apparent limitations, the pleadings and motions on file at this juncture indicate that 23 Plaintiff can adequately articulate his claims with the assistance of other prisoners, including his 24 current prisoner-paralegal assistant. (ECF No. 134, p. 5; ECF No. 132, p. 2.) Further, at this 25 stage of the proceedings, the Court cannot make a determination that Plaintiff is likely to succeed 26 on the merits. Rand, 113 F.3d at 1525. 27 /// 28 /// 3 1 III. 2 For the reasons stated, Plaintiff’s motion for the appointment of counsel is HEREBY Conclusion and Order 3 DENIED without prejudice. Plaintiff is not precluded from renewing his motion for the 4 appointment of counsel in the future. It is FURTHER ORDERED that Plaintiff’s oppositions, if any, to the pending motions to 5 6 dismiss, shall be served and filed within thirty (30) days following service of this order. If 7 Plaintiff fails to comply with this order, this action may be dismissed for failure to obey a court 8 order. 9 10 11 IT IS SO ORDERED. Dated: /s/ Barbara February 12, 2015 12 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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