Mosby v. Flynn et al

Filing 28

ORDER DISMISSING CASE Without Prejudice. Signed by Judge Roger T. Benitez on 3/23/2017. (All non-registered users served via U.S. Mail Service) (Certified Copy to USM) (fth)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MAURICE MOSBY,
CDCR #T-53894,

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ORDER DISMISSING CASE
WITHOUT PREJUDICE

Plaintiff,

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Case No.: 3:16-cv-01019-BEN-WVG

vs.
CAPTAIN D. FLYNN, et al.
Defendants.

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Maurice Mosby (“Plaintiff”) is proceeding pro se and is currently incarcerated at

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the California Health Care Facility (“CHCF”) in Stockton. He filed a civil rights

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Complaint pursuant to 42 U.S.C. § 1983 for inadequate medical care, alleging violations

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of the Eighth Amendment, Fourteenth Amendment, and Fifth Amendment.

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On December 26, 2016, he filed a document entitled “Notice of

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Declaration/Motion Requesting Dismissal of this Above Entitled Civil Claim, to be

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Without Prejudice.” (ECF No. 24). Therein, he stated that he “moves this above court to

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dismiss this case without prejudice and to further defer such ruling to dismiss this claim

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until adjudication of the herein enclosed ‘Request for Appointment of counsel’ is

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determined to be validated.” (Id.) He attached a form entitled “Inmate Request for

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Assistance from the Court,” which applies to inmates claiming a disability. The form
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3:16-cv-01019-BEN-WVG

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stated that Plaintiff sought to “appoint Counsel to show Deprivation of medical access to

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treatment/orthopedic appliance in violation of th[e] Constitution, deliberate indifference.”

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(Id.)

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He filed the “Inmate Request for Assistance from the Court” form again on

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January 30, 2017. (ECF No. 26). The form is almost identical to the first filing, except

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makes clear that Plaintiff’s disability is that he is confined to a wheelchair. He again

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seeks appointment of counsel.

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The Court construes Plaintiff’s filings to request appointment of counsel to
maintain the action, but if the request is denied, Plaintiff asks the Court to dismiss the

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case without prejudice. Accordingly, the Court must determine whether Plaintiff is

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entitled to counsel. It concludes that he is not.

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Courts have discretion, pursuant to 28 U.S.C. § 1915(e)(1) (1996), to appoint

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counsel for indigent civil litigants upon a showing of exceptional circumstances. “A

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finding of exceptional circumstances requires an evaluation of both the likelihood of

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

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light of the complexity of the legal issues involved.” Terrell v. Brewer, 935 F.2d 1015,

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1017 (9th Cir. 1991) (internal citations omitted). “Neither of these factors is dispositive

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and both must be viewed together before reaching a decision.” Id. (internal citations

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omitted).

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The Court denies Plaintiff’s request without prejudice because nothing suggests he

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is incapable of articulating the factual basis for his inadequate medical care claims, which

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appear “relatively straightforward.” Harrington v. Scribner, 785 F.3d 1299, 1309 (9th

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Cir. 2015). Plaintiff’s Complaint survived pre-answer screening under 28 U.S.C. §

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1915(e)(2) and § 1915A(b). However, at this initial stage of the pleadings, Plaintiff has

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not yet shown a likelihood of success on the merits. Id. Plaintiff’s disability does not

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compel a different result. Plaintiff’s confinement to a wheelchair has not affected his

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ability to articulate his arguments and prosecute the case. Therefore, the Court finds no

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“exceptional circumstances” required to justify the appointment of counsel at this time.
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See, e.g., Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014) (affirming denial of

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counsel where prisoner was able to articulate his inadequate medical care claims in light

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of the complexity of the issues involved, but found unlikely to succeed on the merits).

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Plaintiff’s request for appointment of counsel is DENIED. Pursuant to Plaintiff’s

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request to dismiss this lawsuit if the Court does not appoint counsel, the Court

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DISMISSES the case without prejudice.

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IT IS SO ORDERED.
Dated: March 23, 2017

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