Upshaw v. Chau et al

Filing 8

ORDER Denying Motion to Appoint Counsel [ECF No. 5 ]. Signed by Magistrate Judge Bernard G. Skomal on 5/5/2022. (All non-registered users served via U.S. Mail Service)(axc)

Case 3:22-cv-00183-JO-BGS Document 8 Filed 05/05/22 PageID.50 Page 1 of 4

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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John William UPSHAW,

Case No.: 22-cv-00183-JO-BGS
Plaintiff,

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v.

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ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
[ECF No. 5]

Dr. John CHAU,

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Defendant.

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Plaintiff, a state prisoner proceeding pro se, filed this action under 42 U.S.C. § 1983.

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(ECF No. 1.) Plaintiff filed a letter in which he requested the appointment of counsel.

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(ECF No. 5.) For the reasons set forth below, the request is DENIED.

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I.

BACKGROUND

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Plaintiff’s Complaint asserted claims under the Eighth Amendment and Fourteenth

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Amendment against Dr. Chau and Warden Pollard. (ECF No. 1.) Complaint alleged that

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he was injured when he fell off the upper bunk and severely injured his left hip. (Id. at 3.)

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The Triage Center allegedly told the Plaintiff that he was fine and made him walk back to

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his housing unit. (Id.) Plaintiff alleged that he complained every week from March 2020

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until September 2020 of severe pain and discomfort and sought medical attention. (Id.)
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Plaintiff also alleged that despite being in clear distress, “the doctor kept denying anything

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was wrong and he kept insisting that [the Plaintiff] was ‘chasing narcotics.’” (Id.) Plaintiff

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claimed that it was not until he begged on his knees that Dr. Chau ordered an expedited

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M.R.I., which Plaintiff alleged showed an injury. (Id.) Plaintiff indicated that Dr. Chau

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saw him in extreme pain, but still denied pain reliving medication adequate to handle his

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pain and denied medical treatment that would have diagnosed and treated his injury. (Id.

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at 4.) Plaintiff alleged that Dr. Chau repeatedly downplayed and discounted his pain and

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injury and it caused him months of suffering. (Id.) Plaintiff also alleged that Dr. Chau

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discriminated against him due to his past history with addiction. (Id. at 5.)

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The Order granting Plaintiff’s Motion to Proceed IFP and screening the Complaint

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dismissed Plaintiff’s Fourteenth Amendment claim against Dr. Chau and Plaintiff’s Eighth

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Amendment claim against Warden Pollard, but found the Eighth Amendment claim as to

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Dr. Chau sufficiently pled to survive sua sponte pre-answer screening. (ECF No. 4.) The

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Court gave the Plaintiff 45 days to either notify the Court that he will proceed only under

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his Eighth Amendment claim against Dr. Chau or file a First Amended Complaint

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correcting the deficiencies. (Id. at 11–12.)

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On March 17, 2022, Plaintiff filed a letter informing the Court that he was planning

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on only pursuing his Eighth Amendment claim as to Dr. Chau and dropping his allegation

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against Warden Pollard. (ECF No. 5.) Further, Plaintiff requested that the Court appoint

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him an attorney because he is lost as to how to proceed with his case and really needs help.

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(Id.)

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II.

DISCUSSION

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Plaintiff has filed a letter in which he requested the appointment of counsel. (ECF

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No. 5.) Plaintiff requested that the Court “appoint [him] an attorney because [he is] lost as

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how to do this and [he] really need[s] help[.]” (Id. at 1.) Plaintiff did not provide any other

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reasons for why he needs counsel appointed.

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A.

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“[T]here is no constitutional right to appointed counsel for § 1983 claims[.]”

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Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981); see also Palmer v. Valdez, 560

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F.3d 965, 970 (9th Cir. 2009) (“Generally, a person has no right to counsel in civil

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actions.”). “However, a court may under ‘exceptional circumstances’ appoint counsel for

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indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1).” Palmer, 560 F.3d at 760 (citing

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Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004)).

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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 petitioner to articulate his

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claims pro se in light of the complexity of the legal issues involved.” Id. (quoting Weygandt

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v. Look, 718 F.2d 952, 954 (9th Cir. 1983)); see also Cano v Taylor, 739 F.3d 1214, 1218

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(9th Cir. 2014). “Neither of these considerations is dispositive and instead must be viewed

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together.” Palmer, 560 F.3d at 760.

Legal Standard

“When

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B.

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Plaintiff has not shown exceptional circumstances warranting appointment of

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counsel. Plaintiff has demonstrated his ability to present both factual and legal arguments

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to the Court and appears to have a basic understanding of the legal process. For example,

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Plaintiff’s Eighth Amendment claim against Dr. Chau was found to contain allegations

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sufficient to survive the sua sponte screening required by 28 U.S.C. §§1915(e)(2) and

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1915A(b). (See ECF No. 4.)

Analysis

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Additionally, it does not appear that the legal issues involved are so complex that

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counsel is warranted at this stage of the proceedings. See Wilbron v. Escalderon, 789 F.2d

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1328, 1331 (noting that, “[i]f all that was required to establish successfully the complexity

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of the relevant issues was a demonstration of the need for development of further facts,

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practically all cases would involve complex legal issues.”). The challenges Plaintiff

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identifies are not unique to Plaintiff and could arguably be asserted by almost every

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prisoner. And, although the Court recognizes physical and mental health concerns might

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under some circumstances warrant appointment of counsel, here, it is not at all clear that

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any of Plaintiff’s asserted health concerns would impact his ability to purse his case.

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As to his likelihood of success on the merits, as noted above, Plaintiff had some

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success at the pleading stage of this case, being allowed to proceed on his Eighth

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Amendment claim as to Dr. Chau. However, when his likelihood of success is considered

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in conjunction with his ability to articular his claims and the complexity of the issues

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involved, he has not shown exceptional circumstances justifying appointment of counsel

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at this time.
Accordingly, the Court DENIES Plaintiff’s request for appointment of counsel.

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(ECF No. 5.)

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III.

CONCLUSION

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Plaintiff’s request for the appointment of counsel (ECF No. 5) is DENIED.

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IT IS SO ORDERED.

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Dated: May 5, 2022

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