Washington v. Young, et al.

Filing 26

ORDER signed by Magistrate Judge Deborah Barnes on 10/30/2017 DENYING AS MOOT 16 Motion to Compel Summons and Service of Process and DENYING 17 Motion to Appoint Counsel. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHRISTOPHER NATHANIEL
WASHINGTON,
Plaintiff,

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ORDER

v.

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No. 2:16-cv-1341 DB P

YOUNG, et al.,

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Defendants.

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

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pursuant to 42 U.S.C. § 1983. Plaintiff has consented to the jurisdiction of a magistrate judge.

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(ECF No. 7.) Presently before the court is plaintiff’s motion to compel summons and service of

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process (ECF No. 16) and plaintiff’s motion to appoint counsel (ECF No. 17).

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BACKGROUND
Plaintiff initiated this action on June 16, 2016. (ECF No. 1.) On September 27, 2017,

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plaintiff’s complaint was screened and found to state a claim for cruel and unusual punishment in

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violation of the Eighth Amendment against defendants Young, Weeks, Haas, and Coen. (ECF

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No. 20.) The court dismissed all other claims and defendants and gave plaintiff leave to amend.

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Plaintiff filed a motion for leave to amend his complaint by withdrawing those defendants and

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claims found to be non-cognizable. (ECF No. 23.) The court construed plaintiff’s filing as
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willingness to proceed on the complaint as screened and directed plaintiff to complete and return

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service documents so that the United States Marshall may serve defendants. (ECF No. 24.)

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DISCUSSION
I.

Plaintiff’s Motion to Compel

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Plaintiff moved for an order to compel summons and service of process. (ECF No. 16.)

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In light of the court’s most recent order (ECF No. 24) directing plaintiff to complete and submit

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service documents so that defendants may be served, plaintiff’s motion to compel service will be

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denied as moot.

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II.

Plaintiff’s Motion to Appoint Counsel

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In support of his motion to appoint counsel plaintiff argues he is indigent and is

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proceeding in forma pauperis, his imprisonment will limit his ability to litigate, the issues are

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complex and will require significant research and investigation, he has limited knowledge of the

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law and limited access to the law library. Additionally, counsel would enable him to present

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evidence and cross examine witnesses at trial, and he has made numerous attempts to obtain a

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lawyer. (ECF No. 17.)

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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).

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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 its discretion in declining to appoint

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counsel). The burden of demonstrating exceptional circumstances is on the plaintiff. Id.

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Circumstances common to most prisoners, such as lack of legal education and limited law library

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access, do not establish exceptional circumstances that warrant a request for voluntary assistance

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of counsel. See Wood, 900 F.2d at 1335-35.
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At this stage of the proceedings, with only the plaintiff’s allegations before the court, it

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cannot make a determination that plaintiff is likely to succeed on the merits. Bailey v. Lawford,

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

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trial, plaintiff fails to satisfy Wilborn’s first factor.”). Additionally, plaintiff’s legal claim and the

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factual basis for his claim are not sufficiently complex to require the assistance of counsel. See

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Hedges v. Resolution Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994).
Plaintiff’s complaint alleges defendants subjected himf to cruel and unusual punishment in

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violation of the Eighth Amendment when they solicited an inmate to physically assault him.

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Plaintiff has stated a cognizable Eighth Amendment claim, filed motions (ECF Nos. 16 and 17),

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and responded to directives from the court (ECF No. 23). Thus, plaintiff has shown he is able to

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articulate his claims pro se adequately. Having considered the factors under Palmer, the court

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finds that plaintiff has failed to meet his burden of demonstrating exceptional circumstances

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warranting the appointment of counsel at this time.

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CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:
1. Plaintiff’s May 8, 2017 motion to compel summons and service of process (ECF No. 16)

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is denied as moot, and
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Plaintiff’s May 8, 2017 motion to appoint counsel (ECF No. 17) is denied.

Dated: October 30, 2017

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DLB:12
DB/orders/Prisoner-civil rights/wash.1341.mta

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