(PC) Murray v. Warden et al

Filing 26

ORDER signed by Magistrate Judge Allison Claire on 4/26/21 DENYING 25 Motion to Appoint Counsel. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GREGORY MURRAY,

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No. 2:19-cv-2114 JAM AC P

Plaintiff,

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v.

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WARDEN, et al.,

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ORDER

Defendants.

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Plaintiff has filed another motion for the appointment of counsel. ECF No. 25. The

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

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represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296,

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298 (1989). In certain exceptional circumstances, the district court may request the voluntary

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assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017

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

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“When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the

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likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims

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pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965,

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970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden

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of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to

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most prisoners, such as lack of legal education and limited law library access, do not establish
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exceptional circumstances that would warrant a request for voluntary assistance of counsel.
As with his previous request, plaintiff requests counsel on the ground that he has a large

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brain tumor. ECF No. 25. The motion includes medical records verifying the tumor and a

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handwritten copy of pages from the Merck Manual which detail signs and symptoms of brain

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tumors. Id. at 7-12, 15, 21-31. In denying plaintiff’s previous request for counsel, the court

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advised that “the fact that plaintiff suffers from a brain tumor, without medical documentation

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demonstrating how the tumor effects his functioning and ability to pursue this case, is not enough

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to establish exceptional circumstances warranting appointment of counsel.” ECF No. 22 at 2.

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Plaintiff was further advised that if he filed another motion for appointment of counsel “he should

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provide medical documentation supporting how his impairments effect his functioning.” Id.
Although the attached medical records once again confirm that plaintiff has a brain tumor,

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they do not support his claims of impairment, and the provision of information from the Merck

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Manual, which describes possible signs and symptoms of a brain tumor, does not show that

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plaintiff is in fact suffering from such impairments. The motion for appointment of counsel will

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therefore be denied, and plaintiff is reminded that if he chooses to file another motion he needs to

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provide medical documentation showing how his impairments effect his functioning.

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Plaintiff appears to believe that he was required to file a renewed motion for appointment

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of counsel by April 19, 2021, and he states that he was unable to obtain unbiased evaluations

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within the short time provided. ECF No. 25 at 1. The court did not set a deadline for plaintiff to

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file a renewed motion for appointment of counsel, it merely advised plaintiff of what information

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he would need to provide if he chose to file another motion for counsel in the future. In denying

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the current motion for appointment of counsel, the court is once again advising plaintiff of the

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information he should provide if he chooses to file another motion for appointment of counsel.

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However, plaintiff is not required to file another motion. If he chooses to file another motion

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after the current stay is lifted, there is no deadline for doing so.

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Finally, the present posture of the case does not support the appointment of counsel.

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Plaintiff currently faces no deadlines. He was able to file an Amended Complaint that was

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screened, found to state a claim, and served. Accordingly, it appears that plaintiff is capable of
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proceeding in pro se at this time. Moreover, this case has been referred to the Post-Screening

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Alternative Dispute Resolution Project, and is otherwise stayed as mentioned above. No motions

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or other documents should be filed during the stay. Participation in ADR does not generally

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require the assistance of counsel.

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

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counsel, ECF No. 25, is denied.

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DATED: April 26, 2021

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