Puckett v. Brandon

Filing 70

ORDER DENYING PLAINTIFF'S THIRD MOTION FOR APPOINTMENT OF COUNSEL AND COURT ORDER FOR MENTAL EXAMINATION 68 signed by Magistrate Judge Stanley A. Boone on 6/2/2016. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DURRELL A. PUCKETT,

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Plaintiff,

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v.

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K. BRANDON,

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Defendant.

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Case No.: 1:14-cv-00290-SAB (PC)
ORDER DENYING PLAINTIFF’S THIRD
MOTION FOR APPOINTMENT OF COUNSEL
AND COURT ORDER FOR MENTAL
EXAMINATION
[ECF No. 68]

Plaintiff Durrell A. Puckett is appearing pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983. Both parties have consented to United States magistrate judge

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jurisdiction. (ECF No. 46.)

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Currently before the Court is Plaintiff’s third motion for appointment of counsel, filed May 31,

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2016. Plaintiff also requests that the Court order a mental examination pursuant to Federal Rule of

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Civil Procedure 35.

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I.

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DISCUSSION

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A.

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 any attorney to represent

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plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern
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District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court

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may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at

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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 on the

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merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the

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legal issues involved.” Id. (internal quotation marks and citations omitted).

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In the present case, the Court does not find the required exceptional circumstances. A review

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of the record reflects that Plaintiff is articulate and able to comply with court orders, as well as file pro

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se motions. Further, even if it assumed that plaintiff is not well versed in the law and that he has made

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serious allegations which, if proved, would entitle him to relief, his case is not exceptional. Plaintiff

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alleges a First Amendment claim of retaliation against Defendant K. Brandon. The legal issues

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present in this action are not complex, and Plaintiff has thoroughly set forth his allegations in the

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complaint. While a pro se litigant may be better served with the assistance of counsel, so long as a pro

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se litigant, such as Plaintiff in this instance, is able to “articulate his claims against the relative

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complexity of the matter,” the “exceptional circumstances” which might require the appointment of

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counsel do not exist. Rand v. Rowland, 113 F.3d at 1525 (finding no abuse of discretion under 28

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U.S.C. § 1915(e) when district court denied appointment of counsel despite fact that pro se prisoner

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“may well have fared better-particularly in the realm of discovery and the securing of expert

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testimony.”) Accordingly, Plaintiff’s third motion for the appointment of counsel shall be denied,

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without prejudice.

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B.

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Rule 35 of the Federal Rules of Civil Procedure allows a court, on a motion for good cause, to

Mental Examination

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order a mental examination by a suitably licensed or certified examiner of a party whose mental

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condition is “in controversy.” Fed. R. Civ. P. 35(a); Schlagenhauf v. Holder, 379 U.S. 104, 118

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(1964). The requirements “are not met by mere conclusory allegations of the pleadings—nor by mere

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relevance of the case—but require an affirmative showing by the movant that each condition as to
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which the examination is sought is really and genuinely in controversy and that good cause exists for

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ordering each particular examination.” Schlagenhauf, 379 U.S. at 118.
Here, Plaintiff requests a mental examination by an outside psychologist in lieu of the

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examination through the California Department of Corrections and Rehabilitation (CDCR) because he

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claims such evaluations are biased. Plaintiff cannot request nor can the Court grant an outside

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psychological examination merely because he does not agree with the examination provided by

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CDCR. Moreover, there is no showing that Plaintiff’s mental condition is “in controversy.”

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Accordingly, Plaintiff’s motion for a court order mental examination must be denied.

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II.

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ORDER

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Based on the foregoing, it is HEREBY ORDERED that:

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Plaintiff’s motion for appointment of counsel is DENIED; and

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Plaintiff’s request for a mental examination is DENIED.

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IT IS SO ORDERED.

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Dated:

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June 2, 2016
UNITED STATES MAGISTRATE JUDGE

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