Olive v. Narayan

Filing 29

ORDER GRANTING 28 Motion to Withdraw and DENYING 28 Motion to Appoint Counsel; ORDER WITHDRAWING Plaintiff's Opposition Filed February 28, 2017, signed by Magistrate Judge Gary S. Austin on 5/8/17. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAMIEN DWAYNE OLIVE,

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Plaintiff,

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1:15-cv-01645-GSA-PC
ORDER GRANTING MOTION TO
WITHDRAW AND DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(ECF No. 28.)

vs.

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PRATAP LAKSHMI NARAYAN,

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Defendant.

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ORDER WITHDRAWING PLAINTIFF’S
OPPOSITION FILED FEBRUARY 28, 2017
(ECF No. 20.)

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I.

BACKGROUND

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Damien Dwayne Olive (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint

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commencing this action on October 30, 2015. (ECF No. 1.) This action now proceeds with the

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First Amended Complaint filed on April 28, 2016, against sole defendant Dr. Pratap Lakshmi

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Narayan (“Defendant”), on Plaintiff’s Eighth Amendment medical claim. (ECF No. 11.)

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On January 26, 2017, Defendant filed a motion to dismiss, which is pending. (ECF No.

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17.) On February 28, 2017, Plaintiff filed an opposition to the motion. (ECF No. 20.) On

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April 13, 2017, the court issued an order permitting Plaintiff to withdraw his opposition and file

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an amended opposition.

(ECF No. 24.)

On May 5, 2017, Plaintiff filed an amended
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opposition, a motion to withdraw his previous opposition, and a motion for appointment of

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counsel. (ECF No. 28.)

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II.

MOTION TO WITHDRAW

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Pursuant to the court’s order of April 13, 2017, Plaintiff has filed an amended

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opposition to Defendant’s motion to dismiss and a motion to withdraw his previous opposition

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filed on February 28, 2017. The motion to withdraw is granted, and Plaintiff’s previous

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opposition shall be withdrawn.

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III

MOTION FOR APPOINTMENT OF COUNSEL

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Plaintiff requests appointment of counsel. Plaintiff does not have a constitutional right

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to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and

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the court cannot require an attorney to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1).

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Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298

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(1989). However, in certain exceptional circumstances the court may request the voluntary

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assistance of counsel 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. In determining whether

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

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of 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).

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

At

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this stage in the proceedings, the court cannot make a determination that Plaintiff is likely to

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succeed on the merits; Defendant’s motion to dismiss for failure to exhaust administrative

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remedies and failure to state a claim is now pending and may dispose of the case. Moreover,

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based on the record in this case, Plaintiff is able to adequately articulate his claims. Further, the

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legal issue in this case B whether Defendant was deliberately indifferent to Plaintiff’s medical

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needs B is not complex. Therefore, Plaintiff=s motion for counsel shall be denied without

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prejudice to renewal of the motion at a later stage of the proceedings.

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IV.

CONCLUSION

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Based on the foregoing, it is HEREBY ORDERED that:

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Defendant’s motion to dismiss is GRANTED;
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Plaintiff’s motion to withdraw his opposition and file an amended opposition to

Plaintiff’s opposition to Defendant’s motion to dismiss, filed on February 28,
2017, is WITHDRAWN; and

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Plaintiff’s motion for appointment of counsel is DENIED, without prejudice to
renewal of the motion at a later stage of the proceedings.

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IT IS SO ORDERED.
Dated:

May 8, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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