Blaine v. California Health Care Facility et al

Filing 26

ORDER signed by Magistrate Judge Allison Claire on 12/05/14 denying Motions to Appoint Counsel 20 , 25 . (Plummer, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 VANCE BLAINE, 12 13 14 15 16 No. 2:13-cv-2163 KJM AC P Plaintiff, v. ORDER CALIFORNIA HEALTH CARE FACILITY, et al., Defendants. 17 18 19 20 Plaintiff, a state prisoner proceeding pro se with a civil rights action, has requested appointment of counsel. The United States Supreme Court has ruled that district courts lack authority to require 21 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 22 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 23 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 24 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 25 The test for exceptional circumstances requires the court to evaluate the plaintiff’s 26 likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 27 light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th 28 Cir. 2009) (district court did not abuse discretion in declining to appoint counsel); Wilborn v. 1 1 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 2 1983). 3 The court ordered service of plaintiff’s first amended complaint upon four defendants 4 (doctors) by order filed on October 21, 2014.1 ECF No. 21. Plaintiff requests appointment of 5 counsel, asserting that his “blindness” forecloses his ability to access the prison law library. ECF 6 No. 25. Plaintiff includes a letter from what appears to be his primary care physician, confirming 7 that plaintiff suffers from a “severe vision impairment” and can neither read nor write on his own. 8 Id. at 6. Medical documentation indicates plaintiff is “legally blind.” Id. at 7. 9 As plaintiff has been previously informed, circumstances common to most prisoners, such 10 as lack of legal education and limited law library access, do not establish exceptional 11 circumstances that would warrant a request for voluntary assistance of counsel. See Order, ECF 12 No. 18, filed on September 25, 2014. The court has also noted that prisoner-plaintiffs proceeding 13 pro se are commonly afflicted with disabilities but are able nonetheless to proceed with their 14 litigation on their own. Id. at 5-6. 15 Plaintiff has been able, with or without inmate assistance, to proceed to the point of 16 having framed colorable claims of a violation of the Eighth Amendment in the treatment of his 17 visual impairment/conditions by four defendant physicians. At this time, the court does not find 18 the requisite exceptional circumstances. 19 Accordingly, IT IS HEREBY ORDERED that plaintiff’s October 14, 2014 and November 20 24, 2014 motions for the appointment of counsel (ECF Nos. 20 and 25) are denied. 21 DATED: December 5, 2014 22 23 24 25 26 27 28 1 Plaintiff has consented to dismissal of two defendants and an ADA claim. 2

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