Gray v. Johnson et al

Filing 156

ORDER DENYING 144 145 Motion to Appoint Counsel, without Prejudice signed by Magistrate Judge Gary S. Austin on 12/21/2016. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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1:13-cv-01473-DAD-GSA-PC

DANA GRAY,
Plaintiff,

ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL, WITHOUT
PREJUDICE
(ECF Nos. 144, 145.)

vs.
ROMERO, et al.,
Defendants.

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On November 10, 2016, Plaintiff filed a motion seeking the appointment of 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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Plaintiff asserts that she suffers from lumbar scoliosis and stenosis and requires surgery.

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Plaintiff expresses concerns that major surgery will affect her ability to meet deadlines and

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litigate this case. These are not exceptional circumstances under the law.

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Plaintiff’s case stems from allegations that the defendants, who are medical providers at

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the Central California Women’s Facility, were deliberately indifferent to Plaintiff’s serious

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medical needs. At this stage of the proceedings the Court cannot make a determination that

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Plaintiff is likely to succeed on the merits. Now pending is a motion to dismiss Plaintiff’s

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claims against defendant Dr. Rebel as barred by the statute of limitations, and a motion for

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judgment on the pleadings based on failure to exhaust remedies filed by defendants Mundunuri

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and Ziomek. Based on the record for this case, Plaintiff is able to adequately articulate her

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claims and respond to court orders. Id. Moreover, the legal issue in this case B whether

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defendants deliberately disregarded a substantial risk of serious harm to Plaintiff’s health -- is

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not complex. Therefore, Plaintiff’s motion shall be denied, without prejudice to renewal of the

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motion at a later stage of the proceedings.

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

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IT IS SO ORDERED.
Dated:

December 21, 2016

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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