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)

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