Shannon v. Ikegbu et al

Filing 15

ORDER signed by Magistrate Judge Edmund F. Brennan on 5/23/19 DENYING 14 Motion to Appoint Counsel and an expert without prejudice. If Plaintiff wishes to proceed with this action, he shall file an amended complaint within 30 days from the date of this order, in accordance with the Cour's 2/27/19 screening order. Failure to so comply may result in a recommendation of dismissal. (Mena-Sanchez, L)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

MICHAEL TYRONE SHANNON,

12
13
14
15

No. 2:18-cv-0161-EFB P

Plaintiff,
v.

ORDER

DR. IKEGBU, et al.,
Defendants.

16
17

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

18

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

19

below, the requests are denied without prejudice.

20

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

21

1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional

22

circumstances, the court may request an attorney to voluntarily to represent such a plaintiff. See

23

28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v.

24

Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional

25

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

26

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

27

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

28

the court finds there are no exceptional circumstances in this case.
1

1

Plaintiff also requests appointment of an expert for the purpose of assisting the trier of fact

2

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

3

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

4

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

5

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

6

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

7

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

8

without prejudice as premature.

9

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

10

counsel and an expert (ECF No. 14) is denied without prejudice. If plaintiff wishes to proceed

11

with this action, he shall file an amended complaint within 30 days from the date of this order, in

12

accordance with the court’s February 27, 2019 screening order. Failure to so comply may result in

13

a recommendation of dismissal.

14

DATED: May 23, 2019.

15
16
17
18
19
20
21
22
23
24
25
26
27
28
2