Green v. Nangalama, et al

Filing 36

ORDER signed by Magistrate Judge Craig M. Kellison on 11/30/2016 DENYING plaintiff's 28 request for the appoint of counsel. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LONZELL GREEN,

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No. 2:13-cv-2390-KJM-CMK-P

Plaintiff,
vs.

ORDER

ANDREW NANGALAMA, et al.
Defendants.
/
Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42

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U.S.C. § 1983. Plaintiff seeks the appointment of counsel. The United States Supreme Court

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has ruled that district courts lack authority to require counsel to represent indigent prisoners in

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§ 1983 cases. See Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain

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exceptional circumstances, the court may request the voluntary assistance of counsel pursuant to

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28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v.

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Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). A finding of “exceptional

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circumstances” requires an evaluation of both the likelihood of success on the merits and the

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ability of the plaintiff to articulate his claims on his own in light of the complexity of the legal

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issues involved. See Terrell, 935 F.2d at 1017. Neither factor is dispositive and both must be
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viewed together before reaching a decision. See id.
In the present case, the court does not at this time find the required exceptional

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circumstances. This case involves claims of denial of adequate medical treatment. These claims

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are fairly straightforward and not particularly complex, either legally or factually. Plaintiff

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requests the appointment of counsel due to his inability to pay for counsel, difficulties relating to

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his imprisonment and inexperience, and his pain from the nerve damage. However, none of

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those reasons meet the exceptional circumstance requirement for the appointment counsel. There

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is nothing in plaintiff’s motion to indicate he is unable to comprehend these proceedings, and

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based on the filings in the case thus far, it would appear plaintiff has the ability to articulate his

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claims. The difficulties he may have due to his imprisonment and/or inexperience is not unique

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to plaintiff, as most pro se prison litigants have the same difficulties. Finally, as to the merits of

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plaintiff’s case, this action will likely involve plaintiff’s medical records and testimony of both

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plaintiff and his treating physician. Based on the arguments made and evidence submitted with

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the defendant’s motion for summary judgment, the undersigned cannot find there is a reasonable

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likelihood that plaintiff will be successful on the merits of his case at this time. If this action

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survives summary judgment, plaintiff may renew his motion for the appointment of counsel.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s request for the
appointment of counsel (Doc. 28) is denied.

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DATED: November 30, 2016
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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