Gipbsin v. Kernan, et al

Filing 247

ORDER signed by Magistrate Judge Deborah Barnes on 1/9/2019 DENYING 243 and 246 Motions to Appoint Counsel. (Huang, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CLARENCE A. GIPBSIN,

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Plaintiff,

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v.

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No. 2:12-cv-0556 KJM DB P

ORDER

SCOTT KERNAN, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights

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action under 42 U.S.C. § 1983. Presently before the court are plaintiff’s motions requesting the

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appointment of counsel. (ECF Nos. 243, 246.) Plaintiff argues in support of his motions that the

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court should appoint counsel because he cannot afford counsel and he is entitled to counsel

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because he is an EOP1 inmate receiving mental health treatment.
The United States Supreme Court has ruled that district courts lack authority to require

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counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490

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U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the

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voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d

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1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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EOP is the abbreviation for Enhanced Outpatient Program, which is a prison mental health care
program designation. Cal. Code Regs., tit. 15 § 3040.1(d); Coleman v. Brown, 28 F. Supp. 3d
1068, 1075 (E.D. Cal. 2014).
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The test for exceptional circumstances requires the court to evaluate the plaintiff’s

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likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in

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light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328,

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1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances

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common to most prisoners, such as lack of legal education and limited law library access, do not

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establish exceptional circumstances that would warrant a request for voluntary assistance of

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counsel.

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Circumstances common to most prisoners, such as the inability to afford counsel, does not
warrant the appointment of voluntary counsel. Mental impairment may be grounds for

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appointment of counsel in certain situations, but the impairment must be an “incapacitating

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mental disability” and the plaintiff “must present substantial evidence of incompetence.” Meeks

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v. Nunez, No. 13CV973-GPC (BGS), 2017 WL 476425, at *3 (S.D. Cal. Feb. 6, 2017). The

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court must be able to find a nexus between the mental disorder and the plaintiff’s ability to

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articulate his claims. See McElroy v. Cox, Civil No. 08-1221 JM (AJB), 2009 WL 4895360 at *3

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(E.D. Cal. Dec. 11, 2009).

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Here, plaintiff has alleged he suffers from mental illness, but has not submitted any

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additional information to demonstrate how his mental impairment would impair his ability to

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litigate this case. Without more information regarding plaintiff’s mental health issues and how

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those issues relate to his ability to proceed with this action pro se, the court does not find the

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required exceptional circumstances. Jones v. Kuppinger, No. 2:13-cv-0451 WBS AC P, 2015

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WL 5522290, at *3-4 (E.D. Cal. Sept. 17, 2015) (“Circumstances common to most prisoners,

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such as a deficient general education, lack of knowledge of the law, mental illness and disability,

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do not in themselves establish exceptional circumstances warranting appointment of voluntary

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civil counsel.”).

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motions for the appointment of

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counsel (ECF No. 243, 246) are denied.

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Dated: January 9, 2019

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DLB:12

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DLB:1/Orders/Prisoner.Civil.Rights/gipb0556.31(6)

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