Nelson v. Runnels et al

Filing 111

ORDER signed by Judge Lawrence K. Karlton on 9/7/2011 ORDERING that Pltf's 110 motion to continue proceeding in forma pauperis is GRANTED. Pltf's request for appointment of counsel, renewed at the 8/29/2011 status conference, is GRANTED. The Clerk is directed to contact Sujean Park for the purpose of locating forthwith an attorney who is willing to accept this appointment. (cc: Sujean Park) (Zignago, K.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RAYMOND PAUL NELSON,

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Plaintiff,

Case No. 2:06-cv-1289 LKK KJN P

vs.
D.L. RUNNELS, et al.,

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Defendants.

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ORDER
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Plaintiff is a former state prisoner proceeding without counsel in this action filed

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pursuant to 42 U.S.C. § 1983. Although plaintiff proceeded in forma pauperis while he was

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incarcerated, his parole necessitated the filing of an updated application. Pursuant to this court’s

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order filed August 30, 2011, plaintiff timely filed an updated application to continue proceeding

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in forma pauperis (see Dkt. No. 110), and in support of his renewed request for appointment of

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counsel.

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Plaintiff’s declaration makes the showing required by 28 U.S.C. § 1915(a).
Accordingly, plaintiff’s request to proceed in forma pauperis is granted.
The United States Supreme Court has ruled that district courts lack authority to

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require counsel to represent indigent prisoners in Section 1983 cases. Mallard v. United States

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Dist. Court, 490 U.S. 296, 298 (1989). Rather, “[i]n proceedings in forma pauperis, the district
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court may request an attorney to [voluntarily] represent any person unable to afford counsel. 28

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U.S.C. § 1915(e)(1). The decision to appoint such counsel is within the sound discretion of the

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trial court and is granted only in exceptional circumstances. A finding of the exceptional

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circumstances of the plaintiff seeking assistance requires at least an evaluation of the likelihood

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of the plaintiff’s success on the merits and an evaluation of the plaintiff’s ability to articulate his

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claims in light of the complexity of the legal issues involved.” Agyeman v. Corrections Corp. of

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America, 390 F.3d 1101, 1103 (9th Cir. 2004) (citations and internal quotations omitted).

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“Neither of these factors is dispositive and both must be viewed together before reaching a

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decision on request of counsel under section 1915(d).” Wilborn v. Escalderon, 789 F.2d 1328,

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1331 (9th Cir. 1986) (fn. omitted); see also, Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.

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1991). See also General Order No. 230, U.S. District Court, Eastern District of California

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(setting forth criteria and procedures for appointing counsel in Section 1983 cases).

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The court finds that the instant case presents exceptional circumstances

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warranting appointment of counsel. Plaintiff has a reasonable likelihood of prevailing on the

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merits of one or more of his claims, demonstrated by the fact that this action has survived both a

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motion to dismiss and a motion for summary judgment. (See Pretrial Order filed June 17, 2011,

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setting forth history of case.) Additionally, although plaintiff effectively defended this action for

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more than five years, he repeatedly sought the assistance of appointed counsel. (See Dkt. Nos.

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10, 22, 27, 61 (addressing plaintiff’s five prior motions (each denied) requesting appointment of

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counsel).) Since appearing in person before this court in July 2011, plaintiff has been

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unsuccessful in his substantial efforts to obtain the assistance of counsel, despite two

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continuances for that specific purpose. (See Dkt. Nos. 105, 107.) The court finds that further

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efforts by plaintiff would be futile. See General Order No. 230 (plaintiff’s substantial efforts to

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obtain legal representation, and court’s finding that further efforts would be futile, are

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prerequisites to appointment). In addition, it would be helpful to the court to have the assistance

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of counsel at trial in this action. For these several reasons, the court finds that appointment of
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counsel is warranted.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to continue proceeding in forma pauperis in this action (Dkt.

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No. 110) is granted;
2. Plaintiff’s request for appointment of counsel, renewed at the August 29, 2011
status conference, is granted; and
3. The Clerk of Court is directed to contact Sujean Park, Alternative Dispute

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Resolution Coordinator, for the purpose of locating forthwith an attorney admitted to practice in

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this court who is willing to accept this appointment.

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SO ORDERED.
DATED: September 7, 2011.

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