Gaines v. CA Dept. of Corrections, et al.

Filing 75

ORDER DENYING Plaintiff's Fourth Motion for Appointment of Counsel or Guardian Ad Litem 74 , signed by Magistrate Judge Stanley A. Boone on 4/15/2019: Motion is DENIED without prejudice. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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THURMAN GAINES,

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Plaintiff,
v.
DR. HOROWITZ,

Case No. 1:15-cv-00587-LJO-SAB (PC)
ORDER DENYING PLAINTIFF’S FOURTH
MOTION FOR APPOINTMENT OF
COUNSEL OR GUARDIAN AD LITEM
(ECF No. 74)

Defendant.

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Plaintiff Thurman Gaines is a state prisoner proceeding pro se and in forma pauperis in this
civil rights action pursuant to 42 U.S.C. § 1983.

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Currently before the Court is Plaintiff’s fourth motion for appointment of counsel or

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guardian ad litem, filed on April 11, 2019. (ECF No. 74.) In support of his request, Plaintiff asserts

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that, while he has received inmate assistance with all previous and the current filings, he will be

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unable to receive any inmate assistance in the future. Given that he has a mental health disorder

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and is mentally disabled, Plaintiff argues that he is unable to articulate his claims clearly in light of

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the complexity of the legal issues involved in this case. Finally, Plaintiff asserts that, when it comes

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to the likelihood of success of the merits, his claims must be taken as true in the light most favorable

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to him, at this point in the proceedings.

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However, first, Plaintiff does not have a constitutional right to appointed counsel in this

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action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any
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attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1), Mallard v. United States District

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Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). Nevertheless, in certain

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exceptional circumstances, the Court may request the voluntary assistance of counsel pursuant to

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section 1915(e)(1). Rand, 113 F.3d at 1525. Without a reasonable method of securing and

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compensating counsel, the court will seek volunteer counsel only in the most serious and

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exceptional cases. In determining whether “exceptional circumstances exist, the district court must

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evaluate both the likelihood of success on the merits [and] the ability of the [plaintiff] to articulate

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his claims pro se in light of the complexity of the legal issues involved.” Id. (internal quotation

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marks and citations omitted). “Neither of these considerations is dispositive and instead must be

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viewed together.” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).

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Initially, while the Court has screened Plaintiff’s second amended complaint and

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determined that Plaintiff has alleged a cognizable claim for deliberate indifferent to serious medical

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need against Defendant Dr. Horowitz, Plaintiff has failed to provide the Court with any evidence

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establishing that there is a strong likelihood that Plaintiff will succeed on the merits of his deliberate

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indifference claim. Further, the record reflects that Plaintiff can adequately articulate his claim and

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the issues raised in this case are not particularly complex. Therefore, the Court fails to find the

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exceptional circumstances necessary to justify granting a request for voluntary assistance of

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counsel.

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Second, Plaintiff requests the appointment of a guardian ad litem pursuant to Federal Rule

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of Civil Procedure 17(c)(2). Rule 17(c)(2) provides, in relevant part, that: “The court must appoint

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a guardian ad litem – or issue another appropriate order – to protect a minor or incompetent person

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who is unrepresented in an action.” However, Plaintiff’s mental health diagnosis and/or his mental

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disability do not establish that Plaintiff is incompetent. Since Plaintiff has not demonstrated that

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he is incompetent, the Court denies Plaintiff’s request for appointment of a guardian ad litem.

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Accordingly, Plaintiff’s fourth motion for appointment of counsel or guardian ad litem,

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(ECF No. 74), is HEREBY DENIED, without prejudice.

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IT IS SO ORDERED.
Dated:

April 15, 2019
UNITED STATES MAGISTRATE JUDGE

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