Bumpus v. Nangalama, et al

Filing 41

ORDER signed by Magistrate Judge Dale A. Drozd on 7/11/2014 DENYING plaintiff's 40 motion for appointment of counsel, without prejudice. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PATRICK BUMPUS,

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No. 2:12-cv-01102 GEB DAD P

Plaintiff,
v.

ORDER

A. NANGALAMA, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se in an action brought pursuant to 42 U.S.C. §

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1983. In this action plaintiff proceeds against six defendants on his Eighth Amendment claims

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that the defendants were deliberately indifferent to his serious medical needs. Under the court’s

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scheduling order the deadline for completing discovery is December 15, 2014, and the deadline

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for filing dispositive motions is March 5, 2015. (ECF No. 39.)

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Plaintiff now requests the appointment of counsel. Plaintiff asserts generally that

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appointment of counsel is necessary because this action presents complex legal issues outside

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plaintiff’s expertise. In addition, plaintiff states, without supporting documentation, that he is “in

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a (E.O.P.) program, and suffer[s] from many of mental disorder’s, as while as take many

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psychotropic medication’s ” [sic]. (ECF No. 40 at 2.)

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District courts lack authority to require counsel to voluntarily represent indigent prisoners
in Section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). However,
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in exceptional circumstances, the court may request that an attorney provide such voluntary

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

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

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whether “exceptional circumstances” exist, the court considers plaintiff’s likelihood of success on

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

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

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The burden of demonstrating exceptional circumstances is on the plaintiff. Id. 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 warranting appointment of counsel.

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Most of plaintiff’s reasons for requesting appointment are not unique to this action. Lack

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of legal expertise is common to most prisoners who commence civil rights litigation.

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Additionally, plaintiff has been able to proceed with this action through the pleading stage, and

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survived defendants’ motion to dismiss, thus demonstrating an ability to articulate his claims and

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arguments despite the complexity of the legal issues. Nevertheless, plaintiff’s asserted

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psychological diagnoses and treatment may demonstrate provide exceptional circumstances

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justifying the appointment of counsel in this case, provided plaintiff can support his assertions

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with appropriate documentation and demonstrate how his specific limitations impact his ability to

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proceed pro se in this action. Accordingly, plaintiff may file another motion for appointment of

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counsel that includes this information.

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However, pursuant to the now pending request, the court finds that plaintiff has failed to

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meet his burden of demonstrating exceptional circumstances warranting the appointment of

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counsel at this time.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s May 23, 2014 motion for

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appointment of counsel (ECF No. 40), is denied without prejudice.

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Dated: July 11, 2014

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DAD:4
bump1102.31

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