Lopez v. Krieg, et al.

Filing 83

ORDER denying 81 Motion to Appoint Counsel signed by Magistrate Judge Allison Claire on 08/12/15. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD LOPEZ,

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No. 2:13-cv-1176 KJM AC P

Plaintiff,

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v.

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J. KRIEG, et al.,

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ORDER

Defendants.

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Plaintiff is a state prisoner proceeding pro se in an action brought under 42 U.S.C. § 1983.

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Plaintiff requests appointment of counsel for the following reasons: plaintiff states that he is

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unable to afford counsel; that his imprisonment “will greatly limit his ability to litigate;” that the

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issues involved in this action “are complex, and will require significant research and investigation

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if and when this case proceeds to trial;” and that counsel will be required at trial to “present

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evidence and cross-examine witnesses.” ECF No. 81. This is plaintiff’s third request for

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appointment of counsel; his prior requests were denied without prejudice. See ECF Nos. 7, 12,

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29, 32.

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This case proceeds on plaintiff’s First Amended Complaint, filed October 27,

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2014, ECF No. 70, on plaintiff’s Eighth Amendment medical deliberate indifference claims

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against defendants Krieg and McDow. See ECF Nos. 76, 79 (granting in part and denying in part

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defendants’ motion to dismiss).
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As this court has previously informed plaintiff, district courts lack authority to require

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counsel to represent indigent prisoners in Section 1983 cases. Mallard v. United States Dist.

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Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may request an

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attorney to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer,

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

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1990). When determining whether “exceptional circumstances” exist, the court must consider

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plaintiff’s likelihood of success on the merits as well as the ability of the plaintiff to articulate his

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claims pro se in light of the complexity of the legal issues involved. See Palmer v. Valdez, 560

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F.3d 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint

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

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In the present case, plaintiff’s reasons for seeking appointment of counsel reflect

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circumstances common to most prisoners – indigence, imprisonment, and counsel better trained

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and positioned to conduct discovery and proceed to trial. Moreover, the factual and legal issues

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are circumscribed in this case, and plaintiff has demonstrated the capacity to ably articulate his

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claims pro se, demonstrated by surviving defendants’ motion to dismiss. A discovery and

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scheduling order issued on August 12, 2015, ECF No. 82, and plaintiff appears fully capable of

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identifying any additional evidence that would support his claims, and formulating his discovery

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requests accordingly.1

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Thus, having considered the factors under Palmer, the court finds that plaintiff has failed

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to meet his burden of demonstrating exceptional circumstances warranting the appointment of

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counsel at this time.

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Plaintiff’s discovery requests may include the following: (1) requests for admission (yes-or-no
statements of fact) directed to each defendant, see Fed. R. Civ. P. 36; (2) up to twenty-five
interrogatories (questions) directed to each defendant, see Fed. R. Civ. P. 33; and (3) requests for
copies of documents, electronically stored information, or other tangible evidence directed to
each defendant, see Fed. R. Civ. P. 34.
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Accordingly, IT IS HEREBY ORDERED that plaintiff’s August 10, 2015 motion, ECF

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No. 81, for the appointment of counsel is denied without prejudice.

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DATED: August 12, 2015

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