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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 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. 16 17 On November 10, 2016, Plaintiff filed a motion seeking the appointment of counsel. 18 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 19 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an attorney to 20 represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court 21 for the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional 22 circumstances the Court may request the voluntary assistance of counsel pursuant to section 23 1915(e)(1). Rand, 113 F.3d at 1525. 24 Without a reasonable method of securing and compensating counsel, the Court will seek 25 volunteer counsel only in the most serious and exceptional cases. In determining whether 26 “exceptional circumstances exist, the district court must evaluate both the likelihood of success 27 of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 28 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 1 1 Plaintiff asserts that she suffers from lumbar scoliosis and stenosis and requires surgery. 2 Plaintiff expresses concerns that major surgery will affect her ability to meet deadlines and 3 litigate this case. These are not exceptional circumstances under the law. 4 Plaintiff’s case stems from allegations that the defendants, who are medical providers at 5 the Central California Women’s Facility, were deliberately indifferent to Plaintiff’s serious 6 medical needs. At this stage of the proceedings the Court cannot make a determination that 7 Plaintiff is likely to succeed on the merits. Now pending is a motion to dismiss Plaintiff’s 8 claims against defendant Dr. Rebel as barred by the statute of limitations, and a motion for 9 judgment on the pleadings based on failure to exhaust remedies filed by defendants Mundunuri 10 and Ziomek. Based on the record for this case, Plaintiff is able to adequately articulate her 11 claims and respond to court orders. Id. Moreover, the legal issue in this case B whether 12 defendants deliberately disregarded a substantial risk of serious harm to Plaintiff’s health -- is 13 not complex. Therefore, Plaintiff’s motion shall be denied, without prejudice to renewal of the 14 motion at a later stage of the proceedings. 15 16 Accordingly, for the foregoing reasons, Plaintiff’s motion for the appointment of counsel is HEREBY DENIED, without prejudice. 17 18 19 20 IT IS SO ORDERED. Dated: December 21, 2016 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 2

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