Truschke v. Zufall, et al
Filing
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ORDER signed by Magistrate Judge Deborah Barnes on 10/13/2016 DENYING 36 Motion to Appoint Counsel. (Zignago, K.)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JAMES EDWARD TRUSCHKE, Jr.,
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No. 2:15-cv-0701 DB P
Plaintiff,
v.
ORDER
JOHN ZUFALL, et al.,
Defendants.
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Plaintiff, a state prisoner proceeding pro se with a civil rights action, has requested
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appointment of counsel on the grounds that he is indigent, incarcerated, and unversed in the law.
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He also asserts that appointment is proper because he has limited access to the law library, he has
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memory problems due to psychiatric medications, and he is mentally ill.
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The United States Supreme Court has ruled that district courts lack authority to require
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counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490
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U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the
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voluntary assistance of counsel pursuant to 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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The test for exceptional circumstances requires the court to evaluate the plaintiff’s
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likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in
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light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328,
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1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances
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common to most prisoners, such as indigence, 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.
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Additionally, the mere fact that plaintiff is mentally ill or suffers from some memory
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problems is insufficient to warrant appointment of counsel. Plaintiff must also establish that these
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problems prevent him from understanding and responding to the court’s orders. See Allen v.
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Calderon, 408 F.3d 1150, 1153 (9th Cir. 2005). Plaintiff has not met this requirement. Instead, he
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states only that he is a member of the Enhanced Outpatient Program and that he has suffered
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“mental and spiritual damage” as a result of his continued incarceration. Pl.’s Decl. in Supp. Mot.
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Appt. Counsel (“MAC”) ¶¶ 7-8, ECF No. 36. Plaintiff has submitted evidence of his mental
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illness, Psychotic Disorder NOS, but there is no nexus between it and his ability to articulate his
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claims. An April 30, 2015, medical note indicate that “[i]f placed on antipsychotic medication
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[plaintiff’s] delusions and hallucinations would resolve.” MAC Attach., ECF No. 36 at 19.
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Medical records dated March 17, 2016, indicate that plaintiff is involuntarily administered
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psychotropic medication because he is a danger to himself and to others. Id. at 25. With this
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medication, plaintiff “has engaged in fewer danger to self and danger to other behaviors and his
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hygiene has improved.” Id. at 24.
There is no evidence that plaintiff’s mental impairments impede his ability to litigate this
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case. Indeed, plaintiff’s recent motions, which include the instant motion for appointment of
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counsel and a motion for preliminary injunction, demonstrate an understanding of relevant legal
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issues and cite to appropriate legal authority, and his legal arguments are presented in an
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articulate manner. Since plaintiff has not shown that the interests of justice or exceptional
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circumstances warrant appointment of counsel, his motion 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. 36) is DENIED without prejudice.
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Dated: October 13, 2016
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/DLB7;trus0701.31
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