Sullivan v. Biter

Filing 130

ORDER DENYING 129 Motion to Appoint Counsel signed by Magistrate Judge Erica P. Grosjean on 4/10/2018. (Sant Agata, S)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 MICHAEL J. SULLIVAN, Case No. 1:12-cv-01662-AWI-EPG (PC) Plaintiff, 10 11 v. 12 ORDER DENYING MOTION TO APPOINT COUNSEL CHEN, et al., (ECF No. 129) Defendants. 13 14 15 Michael J. Sullivan (“Plaintiff”) is a prisoner in the custody of the California Department 16 of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in forma pauperis 17 in this civil rights action pursuant to 42 U.S.C. § 1983. (ECF Nos. 9, 19). This case now proceeds 18 on Plaintiff’s Second Amended Complaint against Dr. Chen, Dr. Patel, and Dr. Marchiano on 19 claims of deliberate indifference to medical needs in violation of the Eighth Amendment. (ECF 20 No. 57). 21 On April 9, 2018, Plaintiff filed a motion for the appointment of counsel. (ECF No. 129). 22 Plaintiff states that he was transferred to a mental health crisis bed because of a suicide attempt. 23 He further states that he is now housed in an enhanced outpatient status, which is synonymous 24 with mental incompetence. Plaintiff contends that he unraveled and snapped due to the denial of 25 medical care and necessary medicine. 26 Plaintiff does not have a constitutional right to an appointed counsel in this action, Rand v. 27 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an attorney to 28 represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for 1 1 2 3 4 5 6 7 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 8 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 9 The Court will not order appointment of pro bono counsel at this time. The Court has 10 reviewed the record in this case, and at this time, the Court cannot make a determination that 11 Plaintiff is likely to succeed on the merits of his claims. Moreover, plaintiff has been able to 12 adequately articulate his claims throughout the six years this action has been pending. 13 14 Plaintiff is advised that he is not precluded from renewing his motion for appointment of counsel at a later stage of the proceedings. 15 Alternatively, Plaintiff may refile this motion immediately, but must include additional 16 facts and evidence related to his mental health issues. While Plaintiff claims to have mental 17 health issues that prevent him from prosecuting this case, he has provided no evidence of these 18 allegations. He has also not explained how his mental health issues affect his ability to prosecute 19 this case. 20 21 For the foregoing reasons, IT IS ORDERED that Plaintiff’s motion for appointment of counsel is DENIED without prejudice. 22 23 24 IT IS SO ORDERED. Dated: April 10, 2018 /s/ UNITED STATES MAGISTRATE JUDGE 25 26 27 28 2

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