Fratus v. Mazyck et al

Filing 43

ORDER signed by Magistrate Judge Edmund F. Brennan on 7/27/17 denying motions to Appoint Counsel 40 , 41 . (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN FRATUS,

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No. 2:16-cv-0076-KJM-EFB P
Plaintiff,

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v.

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MAZYCK, et al.,

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ORDER

Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in an action brought

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under 42 U.S.C. § 1983. He requests appointment of counsel and a medical expert. As explained

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below, the requests are denied without prejudice.

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District courts lack authority to require counsel to represent indigent prisoners in section

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1983 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 to represent such a plaintiff. See

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28 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). When determining whether “exceptional

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circumstances” exist, the court must consider the likelihood of success on the merits as well as the

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

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involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Having considered those factors,

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the court finds there are no exceptional circumstances in this case.
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Plaintiff also requests a medical expert for the purpose of assisting the trier of fact in

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understanding the evidence in this case. Federal Rule of Evidence 706 authorizes the court to

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appoint a neutral expert witness and apportion the fee among the parties. Where, as here, one

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party is indigent, the court has discretion to apportion the entire fee to the other side. McKinney

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v. Anderson, 924 F.2d 1500, 1511 (9th Cir. 1991), vacated and remanded on other grounds by

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Helling v. McKinney, 502 U.S. 903 (1991). At this early stage in the proceedings, however, there

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is no evidence before the court requiring interpretation. Accordingly, plaintiff’s request is denied

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without prejudice as premature.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s requests for the appointment of

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counsel and a medical expert (ECF Nos. 40 & 41) are denied without prejudice.

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DATED: July 27, 2017.

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