Gray v. Johnson et al
ORDER DENYING 144 145 Motion to Appoint Counsel, without Prejudice signed by Magistrate Judge Gary S. Austin on 12/21/2016. (Sant Agata, S)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL, WITHOUT
(ECF Nos. 144, 145.)
ROMERO, et al.,
On November 10, 2016, Plaintiff filed a motion seeking the appointment of counsel.
Plaintiff does not have a constitutional right to 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).
Plaintiff asserts that she suffers from lumbar scoliosis and stenosis and requires surgery.
Plaintiff expresses concerns that major surgery will affect her ability to meet deadlines and
litigate this case. These are not exceptional circumstances under the law.
Plaintiff’s case stems from allegations that the defendants, who are medical providers at
the Central California Women’s Facility, were deliberately indifferent to Plaintiff’s serious
medical needs. At this stage of the proceedings the Court cannot make a determination that
Plaintiff is likely to succeed on the merits. Now pending is a motion to dismiss Plaintiff’s
claims against defendant Dr. Rebel as barred by the statute of limitations, and a motion for
judgment on the pleadings based on failure to exhaust remedies filed by defendants Mundunuri
and Ziomek. Based on the record for this case, Plaintiff is able to adequately articulate her
claims and respond to court orders. Id. Moreover, the legal issue in this case B whether
defendants deliberately disregarded a substantial risk of serious harm to Plaintiff’s health -- is
not complex. Therefore, Plaintiff’s motion shall be denied, without prejudice to renewal of the
motion at a later stage of the proceedings.
Accordingly, for the foregoing reasons, Plaintiff’s motion for the appointment of
counsel is HEREBY DENIED, without prejudice.
IT IS SO ORDERED.
December 21, 2016
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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