Washington v. California Department of Corrections

Filing 72

ORDER signed by Magistrate Judge Dennis M. Cota on 2/16/2021 DENYING 69 Motion for Appointment of Counsel and an Orthopedic Expert Witness. (Henshaw, R)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 12 WILLIAM NATHANIEL WASHINGTON, Plaintiff, 13 14 15 16 No. 2:15-CV-2302-MCE-DMC-P ORDER v. M. KUERSTEN, Defendant. 17 18 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 19 42 U.S.C. § 1983. Pending before the Court is plaintiff’s motion for the appointment of counsel 20 and an orthopedic expert witness. See ECF No. 69. 21 The United States Supreme Court has ruled that district courts lack authority to 22 require counsel to represent indigent prisoners in § 1983 cases. See Mallard v. United States Dist. 23 Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the Court may request the 24 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 25 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 26 A finding of “exceptional circumstances” requires an evaluation of both the likelihood of success 27 on the merits and the ability of the plaintiff to articulate his claims on his own in light of the 28 complexity of the legal issues involved. See Terrell, 935 F.2d at 1017. Neither factor is 1 1 dispositive and both must be viewed together before reaching a decision. See id. In Terrell, the 2 Ninth Circuit concluded the district court did not abuse its discretion with respect to appointment 3 of counsel because: 4 5 6 7 8 9 . . . Terrell demonstrated sufficient writing ability and legal knowledge to articulate his claim. The facts he alleged and the issues he raised were not of substantial complexity. The compelling evidence against Terrell made it extremely unlikely that he would succeed on the merits. Id. at 1017. In the present case, the Court does not at this time find the required exceptional circumstances. Plaintiff offers no compelling explanation as to why he requires the assistance of 10 counsel. While Plaintiff states he seeks counsel “for the limited purpose of conducting 11 questioning of plaintiff when he testifies during trial proceedings,” ECF No. 69, pgs. 1, he does 12 not explain why he is unable to simply offer his testimony. Additionally, Plaintiff has not 13 demonstrated a likelihood of success on the merits. As explained in the court’s February 4, 2019, 14 findings and recommendations denying Plaintiff’s motion for summary judgment, which have 15 been adopted by the District Judge, disputed issues of material fact remain for trial. While 16 Plaintiff certainly has some likelihood that he will prevail, whether he is more likely than not to 17 prevail has not been established. Finally, a review of the record reflects that Plaintiff has been 18 able to sufficiently articulate his claims, which are neither legally nor factually complex. 19 20 21 22 The above analysis applies equally to Plaintiff’s request for appointment of an orthopedic expert witness. Accordingly, IT IS HEREBY ORDERED that plaintiff’s request for the appointment of counsel and an orthopedic expert witness (ECF No. 69) is denied. 23 24 Dated: February 16, 2021 ____________________________________ DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 25 26 27 28 2

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