Gomez v. Sanders, et al.

Filing 61

ORDER signed by Magistrate Judge Craig M. Kellison on 9/18/2017 DENYING 49 and 59 Requests for the Appointment of Counsel. Plaintiff to file opposition to the pending motion for summary judgment within 60 days from the date of this order. (Henshaw, R)

Download PDF
1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE GOMEZ, 12 No. 2:13-CV-0480-GEB-CMK-P Plaintiff, 13 vs. 14 SANDERS, et al., 15 16 17 ORDER Defendants. / Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Plaintiff seeks the appointment of counsel. The United States Supreme Court 19 has ruled that district courts lack authority to require counsel to represent indigent prisoners in 20 § 1983 cases. See Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain 21 exceptional circumstances, the court may request the voluntary assistance of counsel pursuant to 22 28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 23 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). A finding of “exceptional 24 circumstances” requires an evaluation of both the likelihood of success on the merits and the 25 ability of the plaintiff to articulate his claims on his own in light of the complexity of the legal 26 issues involved. See Terrell, 935 F.2d at 1017. Neither factor is dispositive and both must be 1 1 viewed together before reaching a decision. See id. 2 In the present case, the court does not at this time find the required exceptional 3 circumstances. This case involves claims of an Eighth Amendment violation for the denial of 4 adequate medical treatment, specifically failure to place plaintiff on a kidney transplant list. The 5 claims are fairly straightforward and not particularly complex, either legally or factually. 6 Plaintiff requests the appointment of counsel due to his inability to pay for counsel, difficulties 7 relating to his imprisonment and inexperience, and a limited grasp of the English language. 8 However, none of those reasons meet the exceptional circumstance requirement for the 9 appointment counsel. There is nothing in plaintiff’s motion to indicate he is unable to 10 comprehend these proceedings, even with a limited grasp of the English language, and based on 11 the filings in the case thus far, it would appear plaintiff has the ability to articulate his claims. 12 The difficulties he may have due to his imprisonment and/or inexperience is not unique to 13 plaintiff, as most pro se prison litigants have the same difficulties. Finally, as to the merits of 14 plaintiff’s case, based on the arguments made and evidence submitted with the defendant’s 15 motion for summary judgment, the undersigned cannot find there is a reasonable likelihood that 16 plaintiff will be successful on the merits of his case at this time. If this action survives summary 17 judgment, plaintiff may renew his motion for the appointment of counsel. 18 However, it appears that plaintiff is facing some difficulties in accessing the law 19 library. Defendants filed a motion for summary judgement to which plaintiff has not filed an 20 opposition. To the extent plaintiff needs additional time in which to respond given his limited 21 access to the law library and other difficulties set forth in his motion, the court will sua sponte 22 extend the time plaintiff has in which to file his opposition to the pending motion for summary 23 judgment. Plaintiff is reminded that if he does not serve and file a written opposition to the 24 motion or a request to postpone consideration of the motion, the court may consider the failure to 25 act as a waiver of opposition to the defendants’ motion. If the defendants’ motion for summary 26 judgment, whether opposed or unopposed, is granted, judgment will be entered for the 2 1 defendants without a trial and the case will be closed. See Rand v. Rowland, 154 F.3d 952, 957 2 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988). 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. Plaintiff’s requests for the appointment of counsel (Docs. 49, 59) are 2. Plaintiff shall file an opposition to the pending motion for summary 5 6 7 denied; and judgment within 60 days from the date of this order. 8 9 10 11 DATED: September 18, 2017 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?