Mazza v. Austin et al

Filing 69

ORDER signed by Magistrate Judge Allison Claire on 6/21/16 DENYING without prejudice 68 Motion to Appoint Counsel. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BRYAN MAZZA,

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No. 2:14-cv-0874 GEB AC P

Plaintiff,
v.

ORDER

L. AUSTIN, et al.,
Defendants.

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Plaintiff is a state prisoner who proceeds pro se and in forma pauperis with this civil rights

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action filed pursuant to 42 U.S.C. § 1983. This action is stayed until July 15, 2016, or further

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order of this court, pending resolution of a separate criminal action against plaintiff. Currently

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pending is plaintiff’s third request for appointment of counsel. See ECF No. 68. For the reasons

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stated herein, plaintiff’s request is denied without prejudice.

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Plaintiff’s prior requests for appointment were denied without prejudice by orders filed

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April 16, 2015, ECF No. 13, and October 1, 2014, ECF No. 26. Both requests were denied due to

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plaintiff’s failure to meet his burden of demonstrating the requisite exceptional circumstances.

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The instant request seeks appointment based on plaintiff’s “limited access to the law library and

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limited knowledge of the law;” because the “issues involved in this case are complex, and will

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require significant research and investigation;” and because appointed counsel would be better

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qualified to conduct a trial in this action. See ECF No. 1 at 1. Plaintiff avers that “this case will
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largely be drawn from the plaintiff’s Unit Health Record [UHR]” and therefore “a liason, a

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member of the Bar, would be helpful for both sides.” Id. at 4. Plaintiff emphasizes that he is

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unable to afford counsel and has made repeated unsuccessful attempts to obtain legal assistance.

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As the undersigned has previously informed plaintiff, this court has no authority to require

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an attorney to represent an indigent prisoner in a civil rights action. Mallard v. United States

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Dist. Court, 490 U.S. 296, 298 (1989). Only in certain exceptional circumstances may a district

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court request the voluntary assistance of a willing attorney. See 28 U.S.C. § 1915(e)(1); Terrell v.

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

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(9th Cir. 1990). The test for exceptional circumstances requires the court to evaluate the

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plaintiff’s likelihood of success on the merits and 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 Wilborn v. Escalderon,

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789 F.2d 1328, 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).

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Circumstances common to most prisoners, such as lack of legal education and limited law library

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access, do not establish exceptional circumstances that would warrant a request for voluntary

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assistance of counsel. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).

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The court is required to consider plaintiff’s request with deference to the fact that only a

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limited number of volunteer attorneys are available for appointment. Although this action

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proceeds against five defendants, primarily medical providers, on a claim of deliberate

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indifference to plaintiff’s serious medical needs, the pertinent allegations are relatively limited,

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viz., to plaintiff’s claim that defendants improperly discontinued his narcotic medication.

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Although plaintiff has a reasonable opportunity to prevail on the merits of his claims, he has also

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demonstrated the ability to adequately articulate and proceed on his claims on his own. As

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plaintiff notes, the merits of his claims will rest initially on his UHR, which will be carefully

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considered by the court should defendants file a dispositive motion. Until that time, the parties

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will engage in discovery pursuant to a new discovery order that this court will issue after the stay

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is lifted. Plaintiff may begin to consider the information he should seek from each defendant

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when discovery re-commences, by identifying any additional evidence that would support his

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claims, and by formulating his discovery requests accordingly.1 Because these matters appear

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well within plaintiff’s capacity, and the reasons he proffers in support of his request for

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appointment are circumstances common to most prisoners, the instant request will be denied.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for the appointment of

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counsel, ECF No. 68, is denied without prejudice.

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DATED: June 21, 2016

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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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