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David John Berg v. Kazalec


March 31, 2011


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Presently pending is defendants' motion to dismiss, filed February 22, 2011, and plaintiff's motion for appointment of counsel. Plaintiff has not yet filed an opposition to defendants' motion.

The United States Supreme Court has ruled that district courts lack authority to require counsel to represent indigent prisoners in Section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). Rather, "[i]n proceedings in forma pauperis, the district court may request an attorney to [voluntarily] represent any person unable to afford counsel. 28 U.S.C. § 1915(e)(1). The decision to appoint such counsel is within the sound discretion of the trial court and is granted only in exceptional circumstances. 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 v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004) (citations and internal quotations omitted). "Neither of these factors is dispositive and both must be viewed together before reaching a decision on request of counsel under section 1915(d)." Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (fn. omitted); see also, Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).

The instant action meets these criteria. The case is moderately complex, both as framed in the complaint, and as demonstrated by defendants' arguments in support of their motion to dismiss. As the court found in screening the complaint pursuant to Section 1915A, plaintiff alleges potentially cognizable claims against nine defendants. In addition, plaintiff requires discovery to identify at least one currently named "Doe" defendant. Plaintiff's claims include alleged violations of his rights under the First and Eighth Amendments to the United States Constitution, and include allegations that plaintiff suffers permanent injury as a result of challenged conduct. These allegations, if proven, implicate significant constitutional issues and demonstrate some likelihood that plaintiff could succeed on the merits of his claims. The challenged conduct took place at Sacramento County Jail, and plaintiff is now incarcerated in administrative segregation in Calipatria State Prison. Plaintiff asserts that he has limited access to the law library and legal materials, that he is precluded from engaging in inmate-to-inmate communications and thus is unable to contact most of his witnesses who are now incarcerated at other facilities, and that his case will require expert medical evidence that he is unable to obtain. Plaintiff asserts that his case is factually and legally complex, and that he is further disadvantaged by having only a ninth grade education.

For these several reasons, and because it would be helpful to the court to have the assistance of counsel in responding to the instant motion to dismiss, the court finds that appointment of counsel is warranted pursuant to this court's General Order No. 230 (setting forth the criteria and procedure for appointment of counsel in Section 1983 cases).

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motion for appointment of counsel (Dkt. No. 14) is granted;

2. The Clerk of Court is directed to locate forthwith an attorney admitted to practice in this court who is willing to accept the appointment; and

3. The deadline for filing an opposition to defendants' motion to dismiss is suspended pending further order of this court.


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