Cardona v. Syverson

Filing 45

ORDER denying 44 Motion to Appoint Counsel signed by Magistrate Judge Kendall J. Newman on 07/01/13. (Plummer, M)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

JUAN CARDONA,
Plaintiff,

11
12

No. 2:11-cv-1680 TLN KJN P

vs.

13

DALE SYVERSON, M.D.,

14

Defendants.

15
16
17
18

ORDER
/

Plaintiff is a state prisoner proceeding pro se in an action brought under 42 U.S.C.
§ 1983. Plaintiff requests the appointment of pro bono counsel.
District courts lack authority to require any attorney to represent an indigent

19

prisoner in a Section 1983 case. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989).

20

In exceptional circumstances, the court may request an attorney to voluntarily to represent such a

21

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

22

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

23

“exceptional circumstances” exist, the court must consider plaintiff’s likelihood of success on the

24

merits as well as the ability of the plaintiff to articulate his claims pro se in light of the

25

complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009)

26

(district court did not abuse discretion in declining to appoint counsel). The burden of
1

1

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

2

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

3

exceptional circumstances that warrant a request for voluntary assistance of counsel.
In the instant case, in addition to his indigence, lack of legal experience and

4
5

limited law library access, plaintiff asserts that he requires appointment of counsel due to the

6

complexity of the medical issues central to this action. This action is currently submitted on a

7

fully briefed motion for summary judgment filed by the sole defendant; a physician who is

8

represented by counsel. Nevertheless, plaintiff has opposed the motion in two lengthy briefs

9

supported by extensive exhibits. Plaintiff’s briefing is cogent and helpful. Thus, the court finds

10

that plaintiff has capably articulated his claims despite the complexity of the legal issues

11

involved. Palmer, 560 F.3d at 970. Therefore, having considered the factors under Palmer, the

12

court finds that plaintiff has failed to meet his burden of demonstrating that exceptional

13

circumstances warrant the appointment of counsel at this time.
However, as plaintiff notes, should he prevail on summary judgment and this

14
15

action proceeds to trial, appointment of counsel may be warranted at that time, when plaintiff

16

may again request such appointment.
Accordingly, IT IS HEREBY ORDERED that plaintiff’s June 12, 2013 motion for

17
18

the appointment of counsel (ECF No. 44), is denied without prejudice.

19

DATED: July 1, 2013

20
_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

21
22
23

card1680.31.kjn

24
25
26
2