Harris v. Fernan et al
ORDER signed by Magistrate Judge Kendall J. Newman on 10/13/2020 DENYING without prejudice plaintiff's 91 motion for the appointment of counsel. (Yin, K)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
WAYDE HOLLIS HARRIS,
No. 2:17-cv-0680 TLN KJN P
S. KERNAN, et al.,
Plaintiff is a state prisoner, proceeding pro se, in an action brought under 42 U.S.C.
§ 1983. Plaintiff requests that the court appoint counsel.
In screening plaintiff’s pleading, the undersigned found that plaintiff may be able to
demonstrate that Dr. Kuersten was deliberately indifferent to plaintiff’s serious medical needs by
allegedly interfering with numerous recommendations of specialists concerning the diagnosis and
treatment of plaintiff’s chronic GI symptoms, suffered over more than four years, which remain
undiagnosed, by denying plaintiff’s primary care physicians’ requests based on recommendations
by medical specialists, as well as by suggesting physical therapy for plaintiff’s tendon of his right
thumb where the orthopedic specialist stated that “further nonoperative treatment would not be
effective.” (ECF No. 20 at 110.)
District courts lack authority to require counsel to represent indigent prisoners in section
1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional
circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28
U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v.
Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional
circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as
well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the
legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not
abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional
circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of
legal education and limited law library access, do not establish exceptional circumstances that
warrant a request for voluntary assistance of counsel.
The instant case is a fairly straightforward medical case where plaintiff alleges defendant
interfered with the orders of other medical professionals.1 The undersigned observes that plaintiff
is articulate and extremely well-versed in the facts of his case, has pursued voluminous discovery,
and is a skilled advocate for his claims. But at this stage of the proceedings, the likelihood of
success on the merits is unclear. Having considered the factors under Palmer, the court finds that
plaintiff has not met his burden of demonstrating exceptional circumstances warrant the
appointment of counsel at this time.
Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for the appointment of
counsel (ECF No. 91) is denied without prejudice.
Dated: October 13, 2020
While plaintiff claims there are over 6,172 pages of medical records, such records encompassed
plaintiff’s entire medical file covering a period of about eleven years. But Dr. Kuersten has not
been plaintiff’s doctor for eleven years. As noted above, this action proceeds solely on plaintiff’s
claims against Dr. Kuersten.
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