Jackson v. Mendenhall

Filing 45

ORDER Denying Plaintiff's Motions for Appointment of Counsel 39 40 42 , signed by Magistrate Judge Stanley A. Boone on 10/31/16. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CURTIS RENEE JACKSON,

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Case No. 1:13-cv-01679-SAB
ORDER DENYING PLAINTIFF’S
MOTIONS FOR APPOINTMENT OF
COUNSEL

Plaintiff,
v.
D. MENDENHALL,

(ECF Nos. 39, 40, 42)

Defendant.

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Plaintiff Curtis Renee Jackson is appearing pro se and in forma pauperis in this civil rights

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action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s claim that Defendant

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Correctional Officer (CO) Mendenhall used excessive force in violation of the Eighth Amendment

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when he grabbed the right handle of Plaintiff’s wheelchair, and “snatched backwards with such

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intense force, Plaintiff fell forward at which time Plaintiff grabed [sic] the frame of his wheelchair

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to keep from falling onto the concrete ground.” (ECF No. 1 at ¶ 17.) Plaintiff alleges that his

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torso went from a bent forward position to an upright position so quickly that he suffered injury.

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(Id.) The parties have consented to the jurisdiction of a United States Magistrate Judge, and this

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matter is scheduled for a jury trial on February 14, 2017.

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On September 1, 2016, Plaintiff filed a motion for appointment of counsel. (ECF No. 39.)

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On September 12, 2016, Plaintiff filed a motion for appointment of counsel for his settlement

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conference. (ECF No. 40.) On October 17, 2016, Plaintiff filed a duplicate copy of his motion for

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appointment of counsel for his settlement conference. (ECF No. 42.)
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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 for

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the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in

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certain exceptional circumstances the court may request the voluntary assistance of counsel

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pursuant to section 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.

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“exceptional circumstances exist, the district court must evaluate both the likelihood of success of

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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).

In determining whether

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Here, Plaintiff asserts that he suffers from severe depression, anxiety, and PTSD, for which

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he is prescribed powerful psychotropic medications that affect his cognitive thinking. (ECF No.

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39 at ¶ 4.) He states that he has been a mental health patient since 1989 and has been a patient in

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the mental health program at California Department of Corrections and Rehabilitation (“CDCR”)

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since he entered CDCR in 1996. (ECF No. 39 at ¶ 3.) Plaintiff further states that he has been a

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participant in the enhanced out-patient program. (ECF No. 39 at ¶ 5.) Plaintiff argues that he

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should be appointed counsel because his mental illness and the “powerful psychotropic

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medication” make it impossible for him to concentrate and affect his ability to understand,

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prepare, and articulate his claims, defenses, and damages. (ECF No. 39 at ¶ 9; ECF No. 40 at ¶ 2.)

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Plaintiff attaches a letter from Barbara Bachmeier, Psy. D. (ECF No. 40 at 4.) Plaintiff also

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attaches a copy of his statewide psychotropic medication consent form. (ECF NO. 39 at 11-12.)

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In the present case, the court does not find the required exceptional circumstances. This

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court is faced with similar cases almost daily. Generally, a plaintiff that shows at least some

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ability to articulate his claims is not entitled to appointment of counsel, regardless of whether he

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has mental and physical health problems or is incarcerated. See, e.g., Warren v. Harrison, 244 Fed.

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Appx. 831, 832 (9th Cir. 2007) (unpublished) (holding that an inmate plaintiff who had alleged

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mental illness did not qualify for appointment of counsel because he competently presented his
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claims and attached three pertinent exhibits); Miller v. McDaniel, 124 Fed. Appx. 488, 490 (9th

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Cir. 2005) (unpublished) (holding that an inmate plaintiff with mental health problems was not

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entitled to appointment of counsel because he demonstrated an ability to articulate his claims pro

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se).

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Here, based on a review of the record in this case, the court does not find that Plaintiff

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cannot adequately articulate his claims. Id. Although Plaintiff has mental health issues, he has

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demonstrated the capability to adequately articulate his claims, positions, and arguments,

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particularly given that this action involves an excessive force claim that is not complex. The

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Court notes that Plaintiff participated in a settlement conference in this action before Magistrate

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Judge Kendall J. Newman on October 27, 2016, wherein Plaintiff was adequately able to discuss

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settlement and articulate his claims. (ECF No. 44.) The Court also notes that Plaintiff represented

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himself during a two day trial in another civil rights action in this Court before Magistrate Judge

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Barbara A. McAuliffe. See Jackson v. Mendez, 1:11-cv-00080-BAM, ECF No. 205 (E.D. Cal.

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Dec. 1, 2015).

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proceedings in this action do not establish that he is incompetent or otherwise require the

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appointment of counsel on the basis of Plaintiff’s mental health.
For the foregoing reasons, Plaintiff’s motions for the appointment of counsel (ECF Nos.

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Furthermore, the Court finds that the evidence Plaintiff submitted and the

39, 40, 42) are HEREBY DENIED without prejudice.

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IT IS SO ORDERED.
Dated:

October 31, 2016
UNITED STATES MAGISTRATE JUDGE

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