Ramirez v. Haffner et al

Filing 57

ORDER signed by Magistrate Judge Kendall J. Newman on 3/29/16 DENYING without prejudice 41 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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RAUL ENRIQUE RAMIREZ,

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No. 2:14-cv-2079 GEB KJN P

Plaintiff,
v.

ORDER

GARY HAFFNER, et al.,
Defendants.

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

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1983. Plaintiff requests that the court appoint counsel. 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 exceptional circumstances, the court may request an attorney

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to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d

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1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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When determining whether “exceptional circumstances” exist, the court must consider plaintiff’s

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likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro

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se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970

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(9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The

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burden of demonstrating exceptional circumstances is on the plaintiff. Id. 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 that warrant a request for voluntary assistance of counsel.

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Plaintiff alleges that appointment of counsel is warranted because his case has merit and

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he does not have the ability to adequately prepare his case on his own, “given the complex factual

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and legal issues involved.” (ECF No. 41 at 2.) Plaintiff alleges that he is indigent and his efforts

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to obtain pro bono counsel have been unsuccessful. (Id.) Plaintiff further alleges that he is a

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“ninth grade dropout” and has had a difficult time conducting legal research on his own. Plaintiff

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has relied heavily on inmate assistance, but the inmate who has been assisting plaintiff is

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scheduled to be transferred to a different prison and will no longer be able to provide assistance.

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(Id. at 4.) Plaintiff alleges that he is unable to obtain regular assistance from other inmates

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because he is in solitary confinement at Pelican Bay State Prison for “administrative reasons

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unrelated to misconduct.”1 (Id.) Plaintiff alleges that he does not know how to conduct

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discovery, prepare pretrial motions, obtain expert testimony, frame legal and factual issues, or

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otherwise prepare for trial, and he has been “severely hampered” by prison officials at Pelican

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Bay who refuse to provide inmates with adequate library time. (Id. at 4-5.) In support of his

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request for counsel, plaintiff provides the declaration of Vincent Bruce, an inmate who provided

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assistance to plaintiff at Pelican Bay State Prison and apparently assisted in preparing the instant

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request for counsel. (Id. at 3.) Inmate Bruce declares that he has reviewed plaintiff’s documents

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and has had numerous discussions with plaintiff about the instant case. (Id.) According to inmate

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Bruce, plaintiff “does not have an adequate enough grasp of the legal issues in his case” and

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plaintiff “did not understand how to amend his complaint to state cognizable claims against the

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dismissed defendants.” (Id.)

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To the extent plaintiff alleges that he is indigent, uneducated, unfamiliar with the law, and

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has limited law library access, these circumstances are common to most prisoners and do not

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without more warrant appointment of counsel. With respect to plaintiff’s assertion that counsel is

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It is not clear whether plaintiff is still incarcerated at Pelican Bay State Prison. Although
Pelican Bay State Prison remains plaintiff’s address of record, a search for plaintiff’s name in the
California Department of Corrections and Rehabilitation’s inmate locator service indicates that
plaintiff is currently incarcerated at Salinas Valley State Prison. See
http://inmatelocator.cdcr.ca.gov/.
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warranted because his claims have merit “as shown by defendants’ choice to not pursue a motion

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for summary judgment,” see ECF No. 41 at 2, this is not an exceptional circumstance as

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plaintiff’s case is in the discovery stage and motions for summary judgment are generally filed

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after the close of discovery.

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The court has carefully considered plaintiff’s claim that appointment of counsel is

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required because of the complexity of plaintiff’s case. Plaintiff proceeds against defendants

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Thomas, Surian, Fleming, Guerra, and Wilson for alleged violations of plaintiff’s Eighth

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Amendment rights. (See ECF No. 7 at 8-9, 16.) Plaintiff asserts that his case is “extremely

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complex” because it involves multiple defendants at three different prisons, spans a period of

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eight years, and involves complex medical issues related to inadequate and delayed treatment of a

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tumor on plaintiff’s liver, which was discovered in 2010 and removed in 2015. (See ECF No. 41

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at 4-5.) At this stage of the proceedings, it appears that the specific allegations related to the

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remaining defendants are not sufficiently complex to require appointment of counsel. For

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example, plaintiff alleges that after he had a liver embolization in 2014, defendants Guerra and

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Wilson refused to see plaintiff or provide him with pain medication, despite his complaints of

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severe pain. (See ECF No. 1 at 10.) While plaintiff’s pain may have been caused by his liver

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tumor or the liver embolization procedure, the issue of defendants’ alleged failure to respond to

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plaintiff’s complaints of severe pain is not particularly complex, as plaintiff has personal

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knowledge of his pain and of defendants’ alleged refusal to treat him. Nor does plaintiff’s claim

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that defendant Fleming, a gang investigator, interfered with plaintiff’s medical care involve

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complex medical issues, as plaintiff alleges that Fleming prevented plaintiff from obtaining any

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medical care for a period of time by throwing away plaintiff’s health care requests in order to get

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plaintiff to debrief. (See ECF No. 1 at 6-7.)

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As to defendant Thomas, plaintiff alleges that in 2007, nurse Thomas failed to inform

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plaintiff’s that his test results for Hepatitis B and C were negative, thereby delaying the discovery

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of plaintiff’s tumor by two years. (ECF No. 1 at 3-4.) Plaintiff alleges that after his tumor was

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discovered in 2010, a physician recommended that plaintiff have a “GI follow up,” but defendant

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nurse Surian denied the follow up request. (Id. at 5-6.) As a result, plaintiff was not able to see a
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specialist for another four years, causing plaintiff to suffer additional pain as his tumor grew

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larger. In the court’s view, plaintiff’s allegations that defendant Thomas failed to inform plaintiff

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of his test results and defendant Surian denied a follow up request recommended by another

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physician are not of the requisite complexity to warrant appointment of counsel at this time.

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Having considered the factors under Palmer, the court finds that plaintiff has failed to

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meet his burden of demonstrating exceptional circumstances warranting the appointment of

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counsel at this time. However, plaintiff may renew his motion for counsel at a later stage of the

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proceedings.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s June 22, 2015 motion for the

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appointment of counsel (ECF No. 41) is denied without prejudice.

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Dated: March 29, 2016

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