VanDyke v. Sisto et al

Filing 15

ORDER signed by Senior Judge Justin L. Quackenbush on 11/16/2009 DENYING 13 Motion to Appoint Counsel. (Matson, R)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 BEFORE THE COURT is Plaintiff's Motion for Appointment of Counsel (Ct. Rec. 17 13). Plaintiff has requested the appointment of counsel because he cannot afford a lawyer, 18 because he believes the issues in the case are complex, he is not trained in the law, and has 19 never been a party to a civil lawsuit before. Plaintiff also indicates that he suffers from 20 impaired visual acuity due to a retinal detachment in his right eye. He alleges that when he 21 reads for more than an hour, he starts to see spots in left eye and gets painful headaches. Ct. 22 Rec. 13 at 3. 23 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand 24 v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney 25 to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District 26 Court for the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). ORDER - 1 Defendants. v. D.K. SISTO, et al., BRADLEY VAN DYKE, Plaintiff, NO. CV-08-3120-JLQ ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

1 However, in certain exceptional circumstances the court may request the voluntary assistance 2 of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 3 Without a reasonable method of securing and compensating counsel, the court will

4 seek volunteer counsel only in the most serious and exceptional cases. In determining 5 whether "exceptional circumstances exist, the district court must evaluate both the likelihood 6 of success of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in 7 light of the complexity of the legal issues involved." Id. (internal quotation marks and 8 citations omitted). 9 In the present case, the court does not find the required exceptional circumstances.

10 Even if it is assumed that plaintiff is not well versed in the law and that he has made serious 11 allegations which, if proved, would entitle him to relief, his case is not "exceptional." This 12 court is regularly faced with similar cases. Further, at this early stage in the proceedings, the 13 court cannot make a determination that plaintiff is likely to succeed on the merits. In 14 addition, notwithstanding Plaintiff's vision impairment, and based on a review of the record 15 in this case, the court does not find that plaintiff cannot adequately articulate his claims. Id. 16 Plaintiff has advised the court that he intends on attempting to amend his complaint

17 to add additional Defendants and additional unexhausted claims pertaining to his medical 18 treatment for the injuries he sustained in the attack described in his Complaint. Plaintiff 19 admits that he just filed his grievance on August 18, 2009 alleging that "prison medical staff 20 failed to treat a serious medical need in addition to other medical issues that are pertinent to 21 the Plaintiff's complaint." Ct. Rec. 13 at 4-5. The court must advise Plaintiff that pursuant 22 to the Prison Litigation Reform Act of 1995, "[n]o action shall be brought with respect to 23 prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined 24 in any jail, prison, or other correctional facility until such administrative remedies as are 25 available are exhausted." 42 U.S.C. § 1997e(a). Exhaustion must occur prior to filing suit. 26 McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). The section 1997e(a) ORDER - 2

1 exhaustion requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 2 435 U.S. 516, 532 (2002), and "[a]ll `available' remedies must now be exhausted; those 3 remedies need not meet federal standards, nor must they be `plain, speedy, and effective.' " 4 Porter, 534 U.S. at 524 (citing to Booth v. Churner, 532 U.S. 731, 739 n. 5, 121 S.Ct. 1819, 5 149 L.Ed.2d 958 (2001)). Prisoners must complete the prison's administrative process, 6 regardless of the relief sought by the prisoner and regardless of the relief offered by the 7 process, as long as the administrative process can provide some sort of relief on the 8 complaint stated. Booth, 532 U.S. at 741. In light of section 1997e(a), any attempt to amend 9 the complaint to add claims not fully exhausted before December 23, 2008 would likely be 10 futile. Plaintiff could re-file these claims in a separate action once he has properly exhausted 11 his available administrative remedies. 12 For the foregoing reasons, Plaintiff's Motion for the Appointment of Counsel (Ct. Rec.

13 13) is DENIED, without prejudice. 14 IT IS SO ORDERED. The District Court Executive is directed to enter

15 this Order and provide a copy to Plaintiff. 16 17 18 19 20 21 22 23 24 25 26 ORDER - 3 DATED this 16th day of November 2009. s/ Justin L. Quackenbush JUSTIN L. QUACKENBUSH SENIOR UNITED STATES DISTRICT JUDGE