Ahdom v. Lopez et al

Filing 162

ORDER Denying 158 Plaintiff's Motion to Appoint Counsel, signed by Magistrate Judge Barbara A. McAuliffe on 11/30/15. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BILAL AHDOM,

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Plaintiff,
v.
S. LOPEZ, et al.,
Defendants.

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1:09-cv-01874-AWI-BAM (PC)
ORDER DENYING PLAINTIFF’S MOTION
TO APPOINT COUNSEL
(ECF No. 158)

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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 now proceeds on

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Plaintiff’s claims against Defendants Schaefer, Araich, Chen, Shittu, and Ashby for Eighth

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Amendment deliberate indifference. On October 30, 2015, Plaintiff filed the instant motion for

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appointment of counsel. (ECF No. 158.)

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As Plaintiff previously has been informed, he does not have a constitutional right to

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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, as before, Plaintiff contends that he is incapable of functioning at a normal

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cognitive level because he takes a high-dose of Morphine twice daily to manage the chronic pain

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of his spinal injury, and he has limited use of his right upper extremity due to stroke. (ECF No.

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158, p. 2.) He references prior documentation he provided the Court and states his condition has

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not changed. (Id.) Furthermore, he contends that he can neither effectively manage his own

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discovery nor appropriately respond to Defendants’ discovery because of his physical and

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cognitive limitations and minimal understanding of the law. (Id. at 3).

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The Court has considered Plaintiff’s moving papers and supporting documents. Despite

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Plaintiff’s alleged limitations, the pleadings and motions on file at this juncture indicate that he

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can adequately articulate his claims with the assistance of other prisoners, including his current

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prisoner-paralegal assistant. (ECF No. 132, p. 2; ECF No. 134, p. 5; ECF No. 158, pp. 4-5.)

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Further, at this stage of the proceedings, the Court cannot make a determination that Plaintiff is

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likely to succeed on the merits. Rand, 113 F.3d at 1525. Plaintiff notes that this Court has found

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he stated cognizable claims against the Defendants, (ECF No. 158, p. 5), but the fact that he has

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passed this low bar has not yet shown the Court that he is likely to succeed on the merits.

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For the reasons stated, Plaintiff’s motion for the appointment of counsel is HEREBY
DENIED without prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

November 30, 2015

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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