Hackney v. California Health Care Facility, et al.

Filing 52

ORDER signed by Magistrate Judge Deborah Barnes on 11/26/17 DENYING 50 Motion to Appoint Counsel. Plaintiff is ordered to file an amended complaint within 30 days of the date of this order. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIAM HACKNEY,

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No. 2:15-cv-2160 JAM DB P

Plaintiff,
v.

ORDER

CALIFORNIA HEALTH CARE
FACILITY, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights

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action under 42 U.S.C. § 1983. Plaintiff alleges that prison staff at the California Health Care

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Facility delayed medical treatment and “botched” his surgery. (ECF No. 32.) In July 2017, the

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court dismissed plaintiff’s second amended complaint and directed him to file an amended

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complaint within thirty days. Plaintiff moved for and was granted an additional sixty days in

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which to file an amended complaint. (ECF Nos. 48, 49.) The extension of time has expired and

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plaintiff has not filed an amended complaint, but has moved for the appointment counsel. (ECF

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No. 50.)

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MOTION TO APPOINT COUNSEL
In support of his motion to appoint counsel, plaintiff states he is over seventy years old
and has a multitude of health issues that prevent him from pursuing his claim. He also states he
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suffers from glaucoma, “can’t read the words,” does not understand the legal language, is

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confined to a wheelchair, and is taken to outside hospitals for several days once or twice per

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month.

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District courts lack authority to require counsel to represent indigent prisoners in § 1983

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cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional

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circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28

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U.S.C. § 1915(e)(1); 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). The test for exceptional circumstances

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requires the court to evaluate the plaintiff’s likelihood of success on the merits and the ability of

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the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved.

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See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d

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952, 954 (9th Cir. 1983). The burden of demonstrating exceptional circumstances is on the

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plaintiff. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Circumstances common to most

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prisoners, such as lack of legal education and limited law library access, do not establish

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exceptional circumstances that warrant a request for voluntary assistance of counsel. See Wood,

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900 F.2d at 1335-36.

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At this stage of the proceedings, with only plaintiff’s dismissed complaints before it, the

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court is unable to make a determination that plaintiff is likely to succeed on the merits. Bailey v.

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Lawford, 835 F. Supp. 550, 552 (S.D. Cal. 1993) (“Without some evidence that he is likely to

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succeed at trail, plaintiff fails to satisfy Wilborn’s first factor.”). It does not appear based on

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plaintiff’s dismissed complaints that this is a complex issue. He has alleged generally that he

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received inadequate medical treatment. The court is sympathetic to plaintiff’s age and health

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conditions; however, those conditions are not sufficient to warrant the appointment of counsel at

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this stage of the proceedings. Accordingly, the court will deny the motion without prejudice at

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this time.

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AMENDED COMPLAINT
In its July 11, 2017 order (ECF No. 46), the court granted plaintiff a final opportunity to
amend his complaint. As the court has stated previously, to establish a claim for deliberate
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indifference under the Eighth Amendment he must allege facts showing the following: (1) how

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each defendant was involved in his medical care; (2) why the care was inadequate; (3) how each

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defendant’s actions, or inactions, demonstrate that they were deliberately indifferent to plaintiff’s

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medical needs; and (4) what injury plaintiff suffered as a result of the inadequate medical care.

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(See Nov. 18, 2015 Order (ECF No. 12) at 5-6; Mar. 11, 2016 Order (ECF No. 19) at 4-5; Jul. 12,

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2017 Order (ECF No. 46) at 5.)

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Plaintiff is reminded that he must describe each defendant’s action or inactions and

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explain why those actions or inactions were medically unacceptable. Plaintiff is also reminded

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that his third amended complaint must be complete in itself. The court may not refer back to

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plaintiff’s prior complaints to try to determine whether he states cognizable claims. Plaintiff is

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warned that failure to file an amended complaint within thirty days of the date of this order may

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result in a recommendation that this action be dismissed.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for the appointment of counsel is denied without prejudice; and

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2. Plaintiff is ordered to file an amended complaint within thirty days of the date of this

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order. Failure to file an amended complaint may result in a recommendation that the

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action be dismissed.

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Dated: November 26, 2017

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DLB: 12
DLB1/prisoner-civil rights/hack2160.mta.

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