Sullivan v. Biter et.al.
ORDER DENYING 129 Motion to Appoint Counsel signed by Magistrate Judge Erica P. Grosjean on 4/10/2018. (Sant Agata, S)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
MICHAEL J. SULLIVAN,
Case No. 1:12-cv-01662-AWI-EPG (PC)
ORDER DENYING MOTION TO
CHEN, et al.,
(ECF No. 129)
Michael J. Sullivan (“Plaintiff”) is a prisoner in the custody of the California Department
of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in forma pauperis
in this civil rights action pursuant to 42 U.S.C. § 1983. (ECF Nos. 9, 19). This case now proceeds
on Plaintiff’s Second Amended Complaint against Dr. Chen, Dr. Patel, and Dr. Marchiano on
claims of deliberate indifference to medical needs in violation of the Eighth Amendment. (ECF
On April 9, 2018, Plaintiff filed a motion for the appointment of counsel. (ECF No. 129).
Plaintiff states that he was transferred to a mental health crisis bed because of a suicide attempt.
He further states that he is now housed in an enhanced outpatient status, which is synonymous
with mental incompetence. Plaintiff contends that he unraveled and snapped due to the denial of
medical care and necessary medicine.
Plaintiff does not have a constitutional right to an appointed counsel in this action, Rand v.
Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an attorney to
represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for
the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional
circumstances the Court may request the voluntary assistance of counsel pursuant to section
1915(e)(1). Rand, 113 F.3d at 1525.
Without a reasonable method of securing and compensating counsel, the Court will seek
volunteer counsel only in the most serious and exceptional cases. In determining whether
“exceptional circumstances exist, the district court must evaluate both the likelihood of success of
the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the
complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted).
The Court will not order appointment of pro bono counsel at this time. The Court has
reviewed the record in this case, and at this time, the Court cannot make a determination that
Plaintiff is likely to succeed on the merits of his claims. Moreover, plaintiff has been able to
adequately articulate his claims throughout the six years this action has been pending.
Plaintiff is advised that he is not precluded from renewing his motion for appointment of
counsel at a later stage of the proceedings.
Alternatively, Plaintiff may refile this motion immediately, but must include additional
facts and evidence related to his mental health issues. While Plaintiff claims to have mental
health issues that prevent him from prosecuting this case, he has provided no evidence of these
allegations. He has also not explained how his mental health issues affect his ability to prosecute
For the foregoing reasons, IT IS ORDERED that Plaintiff’s motion for appointment of
counsel is DENIED without prejudice.
IT IS SO ORDERED.
April 10, 2018
UNITED STATES MAGISTRATE JUDGE
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