Singleton v. Fortune et al

Filing 54

ORDER DENYING Motion for Appointment of Counsel 52 , signed by Magistrate Judge Gary S. Austin on 10/25/17: 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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1:17-cv-00124 DAD GSA (PC)

LAMAR SINGLETON, SR.,
Plaintiff,

ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

v.

(Document# 52)

DR. FORTUNE, et al.,
Defendants.

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Lamar Singleton, Sr. (“Plaintiff”) is a state prisoner proceeding pro se with this civil

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rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with the First Amended

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Complaint filed on February 19, 2016, against sole defendant Physician’s Assistant Fortune on

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Plaintiff’s medical claim under the Eighth Amendment. (ECF No. 25.) On October 20, 2017,

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plaintiff filed a motion seeking the appointment of counsel. (ECF No. 52.)

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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.

In determining whether

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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).

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In the present case, Plaintiff argues that he is unable to afford counsel, lacks access to

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legal materials, and suffers from serious medical conditions. This alone does not make Plaintiff’s

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case exceptional. In the screening order issued on October 11, 2016, the court found that “[t]he

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amended complaint states a potentially cognizable Eighth Amendment claim for relief against

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defendant Dr. Fortune pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b) [, and i]f the

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allegations of the amended complaint are proven, plaintiff has a reasonable opportunity to prevail

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on the merits of this action.” (ECF No. 28:20-23.) Thus, Plaintiff has a chance of success on the

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merits if his allegations can be proven. A review of the record in this case shows that Plaintiff is

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responsive, adequately communicates, and is able to articulate his claims, and the court notes that

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Plaintiff has filed other cases pro se in this court and appears able to navigate the federal court

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system. The legal issue in this case B whether defendant was deliberately indifferent to Plaintiff’s

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serious medical needs – is not complex. Thus, the court does not find the required exceptional

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circumstances, and Plaintiff’s motion shall be denied without prejudice to renewal of the motion

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at a later stage of the proceedings.

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For the foregoing reasons, Plaintiff=s motion for the appointment of counsel is HEREBY
DENIED, without prejudice.

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IT IS SO ORDERED.
Dated:

October 25, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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