Shepherd v. California Forensic Medical Group et al

Filing 55

ORDER signed by Magistrate Judge Kendall J. Newman on 12/20/17 DENYING 48 Motion to Appoint Counsel. Within 14 days from the date of this order, plaintiff shall file a signed request for a medical expert witness for trial. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CAMERON SHEPARD,

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No. 2:15-cv-1894 WBS KJN P

Plaintiff,
v.

ORDER

CALIFORNIA FORENSIC MEDICAL
GROUP, INC., et al.,
Defendants.

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Plaintiff is a state prisoner, proceeding pro se, with a civil rights action pursuant to 42

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U.S.C. § 1983. Plaintiff has been granted leave to proceed with this action in forma pauperis

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pursuant to 28 U.S.C. § 1915.

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I. Motion for Appointment of Expert

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Plaintiff appears to request a court-appointed neutral expert under Rule 706 of the Federal

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Rules of Evidence. However, plaintiff did not sign his request. Rule 11 of the Federal Rules of

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Civil Procedure require all litigants to sign filings submitted to the court. Id. Plaintiff is granted

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fourteen days in which to re-file the motion bearing his signature.

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II. Motion for Appointment of Counsel

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Plaintiff also requests that the court appoint counsel. District courts lack authority to
require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States
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Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an

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

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

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1990). When determining whether “exceptional circumstances” exist, the court must consider

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plaintiff’s likelihood of success on the merits as well as 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. Palmer v. Valdez, 560 F.3d

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965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel).

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The 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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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.

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Finally, plaintiff mentions a necessity to locate certain witnesses. Plaintiff claims he

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needs to call a witness “Lee John,” born on August 21, 1979, and believes he is now in state

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prison. (ECF No. 48 at 2.) However, the CDCR inmate locator does not reflect that a “Lee John”

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is presently incarcerated in the state of California. http://inmatelocator.cdcr.ca.gov/default.aspx

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(accessed December 18, 2017). Searches for an inmate “John Lee” revealed eight different

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inmates by the name “John Lee,” but none of them were born on August 21, 1979.

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Plaintiff also claims he needs to call two county jail officers, Officer Hemsley and Officer

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Willis, but cannot contact them to obtain affidavits. Because these officers are not incarcerated,

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plaintiff is not required to file an affidavit, but may subpoena them to appear at trial, so long as

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plaintiff follows the procedure set forth in the scheduling order, including the tender of

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appropriate witness fees. (ECF No. 44 at 4.)

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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Within fourteen days from the date of this order, plaintiff’s shall file a signed
request for a medical expert witness for trial (ECF No. 49); and

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2. Plaintiff’s motion for the appointment of counsel (ECF No. 48) is denied.
Dated: December 20, 2017

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/shep1894.31+

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