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Jacie Lee Goudlock, Jr v. Robert Hernandez

January 10, 2011

JACIE LEE GOUDLOCK, JR.,
PLAINTIFF,
v.
ROBERT HERNANDEZ, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Ruben B. Brooks United States Magistrate Judge

ORDER DENYING PLAINTIFF'S REQUEST FOR APPOINTMENT OF COUNSEL [ECF NO. 50]

Plaintiff Jacie Lee Goudlock, Jr., a state prisoner proceeding pro se and in forma pauperis, filed a Complaint on February 1, 2008, pursuant to 42 U.S.C. § 1983 [ECF No. 1]. He filed a First Amended Complaint on August 8, 2008 [ECF No. 7].*fn1 Plaintiff alleges that his Eighth Amendment rights were violated when prison officials' medical response was delayed after he fell off the top bunk bed in his cell. (Am. Compl. 3-4, ECF No. 7.) Also, Goudlock claims his rights were violated when he was forced to live in conditions that were inadequate in light of his medical condition. (Id. at 8, 14.)

Although the original complaint named Defendants Hernandez and Garcia, the First Amended Complaint does not; these two Defendants were therefore dismissed on December 2, 2008 [ECF No. 12]. On September 15, 2009, United States District Court Judge Roger Benitez granted Defendant Peterson's motion to dismiss count two of the First Amended Complaint [ECF No. 34]. On October 13, 2010, Judge Benitez dismissed Defendant Cruz without prejudice because Plaintiff failed to serve Cruz with the summons and Complaint, leaving Defendant Thompson as the only remaining Defendant [ECF No. 48]. On November 19, 2010, Thompson filed a motion to dismiss the First Amended Complaint, which is currently being briefed [ECF No. 52].

This is the fourth time Plaintiff has asked the Court to appoint him an attorney. On May 6, 2008, Plaintiff filed his first motion to appoint counsel [ECF No. 5]. The Court denied this request and dismissed the case on July 1, 2008 [ECF No. 6]. The case was reopened on August 8, 2008, when Goudlock filed his First Amended Complaint [ECF No. 7]. Three days later, he filed a second motion for appointment of counsel [ECF No. 9], which was denied [ECF No. 11]. On January 26, 2009, Plaintiff filed an amended motion for appointment of counsel [ECF No. 20], his third request, which was denied for the same reasons the Court identified when denying Goudlock's second request [ECF No. 22]. Then, on October 21, 2010, Plaintiff filed his fourth Request for Appointment of Counsel [ECF No. 50].*fn2 Although Plaintiff should have filed a motion for reconsideration, the Court will construe this Motion as one seeking reconsideration. See S.D. Cal. Civ. L.R. 7.1(i)(1).

In support of this Motion, Plaintiff asserts the following:

(1) His claim is meritorious; (2) he has made a diligent effort to obtain counsel; (3) Goudlock is unable to afford an attorney; (4) the issues in this case are complex; (5) he has limited education and does not understand court rules; and (6) Plaintiff has already attempted to represent himself in this litigation and has been unsuccessful. (Req. Appointment Counsel 1, 4, ECF No. 50.)

28 U.S.C. § 1915(e)(1) provides: "The court may request an attorney to represent any person unable to afford counsel." 28 U.S.C.A. § 1915(e)(1) (West 2010). But "it is well-established that there is generally no constitutional right to counsel in civil cases." United States v. Sardone, 94 F.3d 1233, 1236 (9th Cir. 1996) (citing Hedges v. Resolution Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994)). There is also no constitutional right to appointed counsel to pursue a § 1983 claim. Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (citing Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981)); accord Campbell v. Burt, 141 F.3d 927, 931 (9th Cir. 1998). Federal courts do not have the authority "to make coercive appointments of counsel." Mallard v. United States Dist. Court, 490 U.S. 296, 310 (1989) (discussing § 1915(d)); see also United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995).

Nevertheless, district courts have discretion, pursuant to 28 U.S.C. § 1915(e)(1), to request attorney representation for indigent civil litigants upon a showing of exceptional circumstances. See Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004) (citing Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984)); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Burns v. County of King, 883 F.2d 819, 824 (9th Cir. 1989). "A finding of the exceptional circumstances of the plaintiff seeking assistance requires at least an evaluation of the likelihood of the plaintiff's success on the merits and an evaluation of the plaintiff's ability to articulate his claims 'in light of the complexity of the legal issues involved.'" Agyeman, 390 F.3d at 1103 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). "'Neither of these factors is dispositive and both must be viewed together before reaching a decision.'" Terrell, 935 F.2d at 1017 (quoting Wilborn, 789 F.2d at 1331).

I. Likelihood of Plaintiff's Success on the Merits

To receive court-appointed counsel, Goudlock must present a non-frivolous claim that is likely to succeed on the merits. Wilborn, 789 F.2d at 1331. The First Amended Complaint purports to state causes of action arising under the Constitution for deliberate indifference to Plaintiff's serious medical needs and violations of his right to be free from cruel and unusual punishment. (Am. Compl. 3-4, 8, 14, ECF No. 7.) Plaintiff contends that the constitutional violations occurred while he was incarcerated at Richard J. Donovan State Prison ("Donovan") between June 11, 2007, and June 15, 2007. (Id. at 1.)

In count one, Goudlock claims that on June 15, 2007, at approximately 4:00 a.m., he fell off the top bunk bed in his cell while sleeping. (Id. at 3.) As a result, Plaintiff "cut [his] left foot to the point that the injury needed stitches, and was bleeding profusely, as well as twist[ed] [his] ankle, shav[ed] off skin on [his] right thigh, and caus[ed] further damage to an already damaged [s]ciatic nerve." (Id.) He states that unknown correctional officers failed to respond to his pleas for help, in violation of his Eighth Amendment right to be free from cruel and unusual punishment. (Id.)

Plaintiff claims in count two that Defendant Peterson, a registered nurse, made Goudlock wait five hours for medical treatment after he arrived at Facility One Medical Clinic. (Id. at 4.) He also contends that although Doctor Lindsey Dugan ordered that Plaintiff be taken to the triage area for stitches, he was unable to receive stitches because too much time had elapsed since his injury. (Id.) As a result, Goudlock contends he was denied adequate medical care. (Id.)

In count three, Plaintiff claims Defendants Thompson and Cruz forced him to live in conditions that were inadequate for his medical condition. (Id. at 8.) Defendants placed Goudlock in "cell 220 up" and ignored his Comprehensive Accommodation Chrono, in which a physician noted that Plaintiff should be assigned to a ground floor cell and a bottom bunk. (Id.; see id. at 16.) He claims he suffers from a "sleeping disorder" that causes him to urinate in his bed at least twice per night, and as a result of soaking in his urine, he developed a severe rash. (Id. at 8.) Plaintiff states Defendant Thompson did not attempt to contact any superior to learn more about Goudlock's medical conditions. (Id.) Defendants could have prevented his injuries if they did not ignore his medical accommodation chrono. (Id.)

Plaintiff alleges in count four that Defendant Cruz forced him to live in inadequate conditions and condoned the constitutional violations. (Id. at 14.) Goudlock told Cruz about his "back injuries and a sleeping disorder," and showed him his medical chrono, ...


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