Dasenbrock v. Kings County et al

Filing 267

ORDER DENYING 261 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 10/10/2017. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(ECF No. 261.)

Plaintiff,

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1:11-cv-01884-DAD-GSA-PC

ROBIN DASENBROCK,

v.
KINGS COUNTY, et al.,

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Defendants.

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I.

BACKGROUND

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Robin Dasenbrock (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint

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commencing this action on November 14, 2011. (ECF No. 1.) This case now proceeds with

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Plaintiff’s Second Amended Complaint filed on September 8, 2015, against defendants Dr. A.

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Enenmoh, Correctional Officer Perez-Hernandez, Nurse Page, and Nurse Adair, on Plaintiff’s

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claims for violation of the Eighth Amendment and related negligence. (ECF No. 140.)

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On August 7, 2017, Plaintiff filed a motion seeking the appointment of counsel. (ECF

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No. 261.) On August 28, 2017, defendant Page filed an opposition to the motion. (ECF No.

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262.) Plaintiff has not filed a reply to the opposition.

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Plaintiff’s motion for appointment of counsel is now before the court.
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II.

COURT-APPOINTED COUNSEL

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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

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represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court

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for the Southern District of Iowa, 490 U.S. 296, 298 (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, the district court must evaluate both the likelihood of success

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of 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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accord Wright v. Director of Corrections, 443 Fed. Appx. 289, 293 (9th Cir. 2011) (citing

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Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (neither of the two factors is dispositive

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and the court should consider both in making a determination); Palmer v. Valdez, 560 F.3d

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965, 970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The

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burden of demonstrating exceptional circumstances is on the plaintiff. Palmer, 560 F.3d at 970.

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Circumstances common to most prisoners, such as lack of legal education and limited law

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library access, do not establish exceptional circumstances that would warrant a request for

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voluntary assistance of counsel.

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III.

PLAINTIFF’S MOTION

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Plaintiff requests counsel for a limited scope of representation, to assist him with

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responding to the motions pending in this case. Plaintiff argues that Defendants have raised

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new legal issues that are beyond his ability to comprehend. Plaintiff also requests the court to

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defer its rulings on the pending motions until after counsel has been appointed.

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Plaintiff claims that he is having extreme difficulties in grasping the legal issues of this

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case, as recognized by Defendant Page who stated in her motion to strike that it is virtually

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impossible to respond to Plaintiff’s opposition to the motion for summary judgment. Plaintiff
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argues that the claims in this case are complex for him, even if the court has stated that the case

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is not complex, because he is unfamiliar with the law and has never filed a lawsuit in the thirty

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years he has been incarcerated. Plaintiff believes this case has merit, because the court has

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allowed it to proceed this far without dismissing it for failure to have merit. Plaintiff also seeks

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counsel to assist him with equitable tolling issues and to argue that his claim against defendant

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Page involves an ongoing tort.

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IV.

DISCUSSION

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Plaintiff’s case stems from allegations that medical personnel at the California

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Substance Abuse Treatment Faility failed to provide him with adequate medical care for rectal

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bleeding from internal hemorrhoids. The case proceeds on Plaintiff’s Eighth Amendment

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medical claims and related negligence claims against four Defendants. Plaintiff’s medical

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claims do not appear to be legally complex.

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Plaintiff’s lack of legal education and experience do not establish exceptional
Moreover, Plaintiff’s filings to date

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circumstances warranting appointment of counsel.

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demonstrate that he is capable of articulating claims without the assistance of counsel. Indeed,

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the record in this case demonstrates that plaintiff is adequately able to articulate and litigate his

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claims in light of any complexity in the case. See Palmer, 560 F.3d at 970 (where a pro se civil

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rights plaintiff demonstrates a good handling of the general litigation procedure and has

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articulated his claims adequately, exceptional circumstances are not shown to warrant

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appointment of counsel). As asserted by defendant Page, Plaintiff has adequate writing skills

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and command of the English language, has filed numerous motions, oppositions, and other

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pleadings in this case, and has successfully maintained this case for almost six years.

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The court cannot make a determination at this stage of the proceedings that Plaintiff is

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likely to succeed on the merits. While it is true that the court found that Plaintiff’s complaint

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“states cognizable claims for violation of the Eighth Amendment and for negligence against

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Defendants,” this finding is not a determination that Plaintiff is likely to succeed on the merits.

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(ECF No. 17 at 1:18-19.) Therefore, Plaintiff’s motion shall be denied, without prejudice to

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renewal of the motion at a later stage of the proceedings.
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V.

CONCLUSION

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Accordingly, for the foregoing reasons, IT IS HEREBY ORDERED that:

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Plaintiff’s motion for the appointment of counsel, filed on August 7, 2017, is
DENIED, without prejudice; and

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Plaintiff’s motion to defer the court’s rulings is DENIED.

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IT IS SO ORDERED.
Dated:

October 10, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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