Harris v. Fernan et al

Filing 94

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)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WAYDE HOLLIS HARRIS,

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No. 2:17-cv-0680 TLN KJN P

Plaintiff,
v.

ORDER

S. KERNAN, et al.,
Defendants.

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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

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demonstrate that Dr. Kuersten was deliberately indifferent to plaintiff’s serious medical needs by

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allegedly interfering with numerous recommendations of specialists concerning the diagnosis and

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treatment of plaintiff’s chronic GI symptoms, suffered over more than four years, which remain

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undiagnosed, by denying plaintiff’s primary care physicians’ requests based on recommendations

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by medical specialists, as well as by suggesting physical therapy for plaintiff’s tendon of his right

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thumb where the orthopedic specialist stated that “further nonoperative treatment would not be

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effective.” (ECF No. 20 at 110.)

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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
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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). When determining whether “exceptional

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circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as

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well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the

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legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not

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abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional

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circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of

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legal education and limited law library access, do not establish exceptional circumstances that

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warrant a request for voluntary assistance of counsel.

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The instant case is a fairly straightforward medical case where plaintiff alleges defendant

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interfered with the orders of other medical professionals.1 The undersigned observes that plaintiff

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is articulate and extremely well-versed in the facts of his case, has pursued voluminous discovery,

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and is a skilled advocate for his claims. But at this stage of the proceedings, the likelihood of

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success on the merits is unclear. Having considered the factors under Palmer, the court finds that

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plaintiff has not met his burden of demonstrating exceptional circumstances warrant the

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appointment of counsel at this time.
Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for the appointment of

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counsel (ECF No. 91) is denied without prejudice.

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Dated: October 13, 2020

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/harr0680.31

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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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