O'Connor v. Perez et al

Filing 19

ORDER signed by Magistrate Judge Deborah Barnes on 3/13/2019 STRIKING plaintiff's 15 first amended complaint from the record and DENYING plaintiff's 18 motion for 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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GLENN O’CONNOR,

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No. 2:18-cv-1057 DB P

Plaintiff,

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v.

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W. PEREZ, et al.,

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ORDER

Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights

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action pursuant to 42 U.S.C. § 1983. Presently before the court is plaintiff’s amended complaint

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(ECF No. 15) and motion for the appointment of counsel (ECF No. 18).

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By order dated January 8, 2019, the court found plaintiff’s complaint stated a potentially

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cognizable claim under the Eighth Amendment. (ECF No. 6.) Thereafter, the court directed the

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United States Marshal to initiate service on the defendants. (ECF No. 12.) Defendants have not

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yet filed a waiver of service or responded to the complaint.
Because it does not appear that plaintiff is attempting to change his complaint in any

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material way, such as by adding factual allegations, claims, or defendants, the court will strike the

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first amended complaint. However, if plaintiff wishes to amend the complaint he may file a

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motion to amend the complaint explaining the reason for the amendment. Plaintiff is informed

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that any amended complaint will be subject to the screening requirement under 42 U.S.C. §

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1915A.
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Plaintiff has also moved for the appointment of counsel. (ECF No. 18.) In support of his

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request, plaintiff argues that he suffers from Chronic Obstructive Pulmonary Disease with

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Bronchiectasis causing him to have up to ten severe coughing spells per day, sometimes requiring

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medical intervention. Plaintiff claims he may not be able to comply with court orders and

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deadlines in this action should he be sent to an outside hospital for treatment.

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The United States Supreme Court has ruled that district courts lack authority to require

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counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490

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U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the

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voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d

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1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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The test for exceptional circumstances requires the court to evaluate the plaintiff’s

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likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in

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light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328,

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1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances

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common to most prisoners, such as lack of legal education and limited law library access, do not

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establish exceptional circumstances that would warrant a request for voluntary assistance of

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counsel.

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In the present case, the court does not find the required exceptional circumstances.

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Plaintiff’s filings indicate he is currently in sufficient health to present arguments to the court.

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The court will deny plaintiff’s motion to appoint counsel without prejudice to its renewal at a

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later stage of the proceedings. However, plaintiff may request extensions of time should his

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health interfere with any future deadlines.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s first amended complaint (ECF No. 15) shall be stricken from the record;

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and,

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2. Plaintiff’s motion for the appointment of counsel (ECF No. 18) is denied.
Dated: March 13, 2019

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DLB:12

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DLB:1/Orders/Prisoner/Civil.Rights/ocon1057.31

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