Wagner v. Posner et al

Filing 133

ORDER signed by Magistrate Judge Kendall J. Newman on 09/13/12 granting 102 Motion to Appoint Counsel. The clerk of court, working with the assistance of Sujean Park, is directed to locate forthwith an attorney admitted to practice in this court who is willing to accept the appointment. (cc: ADR Director) (Plummer, M)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 CLINTON WAGNER, 11 Plaintiff, 12 13 14 15 No. 2: 09-cv-3166 KJM KJN P vs. MOSS POSNER, et al., Defendants. ORDER / 16 Plaintiff is a state prisoner, proceeding without counsel and in forma pauperis, in 17 this action filed pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff’s motion for 18 appointment of counsel filed December 30, 2011. 19 “In proceedings in forma pauperis, the district court ‘may request an attorney to 20 represent any person unable to afford counsel.’ 28 U.S.C. § 1915(e)(1). The decision to appoint 21 such counsel is within ‘the sound discretion of the trial court and is granted only in exceptional 22 circumstances.’ Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). A finding of the 23 exceptional circumstances of the plaintiff seeking assistance requires at least an evaluation of the 24 likelihood of the plaintiff’s success on the merits and an evaluation of the plaintiff’s ability to 25 articulate his claims ‘in light of the complexity of the legal issues involved.’ Wilborn v. 26 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (quoting Weygandt v. Look, 718 F.2d 952, 954 1 1 (9th Cir. 1983)).” Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2 2004). “Neither of these factors is dispositive and both must be viewed together before reaching 3 a decision on request of counsel under section 1915(d).” Wilborn, supra, 789 F.2d at 1331 (fn. 4 omitted); see also, Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). 5 Plaintiff meets both criteria listed above. On July 6, 2012, the court denied 6 defendants’ summary judgment motion as to plaintiff’s claims that defendant Nangalama did not 7 timely prescribe antiviral medications and that defendant Sahota approved non-formulary 8 medications without examining plaintiff. Plaintiff has a chance of success as to his claims. In 9 light of the complexity of these claims and chance of success, appointment of counsel is 10 warranted. 11 12 Following appointment of counsel, the court will issue an order setting the pretrial conference and the jury trial. 13 Accordingly, IT IS HEREBY ORDERED that: 14 1. Plaintiff’s motion for appointment of counsel (Dkt. No. 102) is granted; and 15 2. The Clerk of Court, working with the assistance of Sujean Park, is directed to 16 locate forthwith an attorney admitted to practice in this court who is willing to accept the 17 appointment. 18 DATED: September 13, 2012 19 20 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 21 22 wag3166.app 23 24 25 26 2

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