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Gerald L. Miller, Jr. v. O. Rufion; Moonga

April 28, 2011

GERALD L. MILLER, JR.
PLAINTIFF,
v.
O. RUFION; MOONGA, R.N.,
DEFENDANTS.



The opinion of the court was delivered by: Hon. William McCurine, Jr. U.S. Magistrate Judge, U.S. District Court

CDCR #C-92075

ORDER: (1) DENYING MOTION FOR APPOINTMENT OF COUNSEL [Doc. No. 128]; and (2) DENYING MOTION TO SEAL [Doc. No. 135]

I.

INTRODUCTION

Plaintiff is proceeding pro se and in forma pauperis with a Complaint brought pursuant to 42 U.S.C. section 1983. In his Second Amended civil rights complaint, Plaintiff alleges deliberate medical indifference under the Eighth Amendment. [Doc. No. 37.] On April 1, 2011, Plaintiff filed a second motion seeking appointment of counsel in the above-entitled matter. [Doc. No. 128.] In support of his second motion, he argues new facts exist to warrant appointment of counsel. Specifically, Plaintiff claims he has dyslexia and memory lapses which would affect his performance at trial. Plaintiff requests the pleading in which claims he has learning and memory deficiencies be sealed. [Doc. No. 135, at 1:19-20.]

II.

STANDARD OF REVIEW

There is no constitutional right to counsel in a civil case. Lassiter v. Dep't of Social Services, 452 U.S. 18, 25 (1981). The Court may request an attorney to voluntarily represent a person proceeding in forma pauperis who is unable to afford counsel. 28 U.S.C. § 1915(d). However, such a request may only be made under section 1915 in "exceptional circumstances." Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991)(citing Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). A determination of exceptional circumstances requires the Court's consideration of: (1) the likelihood of success on the merits, and (2) the ability of the Plaintiff to state his claims pro se in light of the complexity of the legal issues involved. See Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997). Both of the exceptional circumstances factors must be considered together before reaching a decision. See Rand, 113 F.3d at 1525; Terrell, 935 F.2d at 1017; Wilborn, 789 F.2d at 1331.

III.

DISCUSSION

A. Motion for Appointment of Counsel

Plaintiff contends he meets the exceptional circumstances requirement because he has a learning disability and memory deficiencies. The Court has reviewed the pleading in which Plaintiff claims to be dyslexic and to have trouble thinking "spontaneously," however there are no medical records, test result or declarations attached to the pleading to support Plaintiff's statement that he suffers from a learning disability. After an evaluation of: (1) the merits of Plaintiff's case, wherein he alleges a sole claim of deliberate indifference and (2) the ability of Plaintiff to articulate his claims, which are not complex, the Court finds exceptional circumstances do not presently exist to award appointment of counsel at this time. Plaintiff understands the issues involved in his case, and was most recently able to successfully defend against Defendant Rufino's motion for summary judgment. Accordingly, Plaintiff's request for appointment of counsel is DENIED without prejudice.

B. Sealing The Judicial Record

Unless a particular court record is one that is traditionally kept secret, there is a strong presumption in favor of public access to court records. Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (citing Foltz v. State Farm Mutual Auto. Insurance Company, 331 F.3d 1122, 1135 (9th Cir. 2003); Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995)). The party attempting to seal judicial records bears the burden of overcoming this strong presumption by "'articulat[ing] compelling reasons supported by specific factual findings' that ...


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