Passer v. Steevers et al

Filing 95

ORDER signed by Magistrate Judge Kendall J. Newman on 10/3/13 granting 93 Motion to Appoint Counsel. Ms. Beth H. Hodess is appointed as counsel in the above-entitled matter. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY PASSER,

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No. 2:08-cv-2792 MCE KJN P

Plaintiff,
v.

ORDER

DR. STEEVERS, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding in an action brought under 42 U.S.C. § 1983. Since

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October 26, 2012, plaintiff has been represented by attorney Beth H. Hodess on a pro bono basis.

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Plaintiff now requests the formal appointment of Ms. Hodess to represent him in this action. Ms.

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Hodess is admitted to practice before this court and is a member of this court’s Pro Bono Panel.

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Plaintiff and Ms. Hodess have each filed an affidavit in support of the instant request for

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appointment of counsel.

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District courts lack authority to require counsel to represent indigent prisoners in section

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1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional

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circumstances, the court may request an attorney to voluntarily to represent such a plaintiff. See

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28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v.

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Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional

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circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as
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well as 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. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). The burden of

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demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to most

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prisoners, such as lack of legal education and limited law library access, do not establish

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exceptional circumstances that warrant a request for voluntary assistance of counsel.

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Plaintiff states that he requires appointment of counsel due to the complexity of issues,

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and need for expert opinion, concerning his claims of deliberate indifference to plaintiff’s serious

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medical needs. Plaintiff states that Ms. Hodess has notified him that, absent appointment by the

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court, she must withdraw her representation due to the lack of financial resources necessary to

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proceed with discovery. Plaintiff states that he remains indigent, which the court previously

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found persuasive in granting plaintiff in forma pauperis status.

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Ms. Hodess states that, within the last year, she represented two other indigent inmates,

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with discovery costs financed by the inmates’ benefactors. Plaintiff contacted Ms. Hodess in late

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August 2012, who agreed to represent plaintiff after conducting “multiple interviews with

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Plaintiff, and review[ing] numerous documents including pleadings and other court filings

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regarding Plaintiff’s claims.” (ECF No. 93 at 6.) Ms. Hodess thereafter “spent numerous hours

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analyzing the complex issues in this case” (id.), and sought to perfect service of process on each

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of the defendants. Ms. Hodess joined the Eastern District’s Pro Bono Panel in December 2012.

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Ms. Hodess states that she is available to assist plaintiff in the preparation and presentation of his

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case through trial, but lacks the funds necessary to proceed with discovery and other necessary

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expenditures.

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The court finds that plaintiff has met his burden of demonstrating exceptional

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circumstances warranting the appointment of counsel. As set forth in the court’s findings and

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recommendations and order denying defendants’ motion to dismiss, this case involves complex

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medical issues concerning plaintiff’s neck and knee. (See ECF Nos. 32, 33.) The denial of

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defendants’ motion to dismiss indicates that plaintiff has some likelihood of success on the merits

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of his claims. Moreover, Ms. Hodess has demonstrated that her understanding and articulation of

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plaintiff’s claims benefit both plaintiff and the court. Ms. Hodess’ familiarity with this action,
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and willingness to represent plaintiff on a pro bono basis are additional factors supporting her

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appointment in this action.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s September 24, 2013 motion for appointment of counsel (ECF No. 93), is

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granted.

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2. Ms. Beth H. Hodess is appointed as counsel in the above-entitled matter.

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3. Appointed counsel shall notify Sujean Park at [phone], or via email at

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[e-mail] if she has any questions related to the appointment.
4. The Clerk of the Court is directed to serve a copy of this order upon Ms. Beth H.
Hodess, Law Offices Of Beth H. Hodess, 4600 Market Street, Oakland, CA 94608.

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SO ORDERED.

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Dated: October 3, 2013

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pass2792.31+appt.

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