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Sean Shields v. Sergeant Koelling

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


May 8, 2012

SEAN SHIELDS, PLAINTIFF,
v.
SERGEANT KOELLING, ET AL., DEFENDANTS.

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

ORDER

Plaintiff is a state prisoner, proceeding without counsel and in forma pauperis, in this action filed pursuant to 42 U.S.C. § 1983 and the Americans with Disabilities Act. Pending before the court is plaintiff's motion for appointment of counsel filed May 3, 2012.

"In proceedings in forma pauperis, the district court 'may request an attorney to 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.' Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). 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.' Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983))." Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004). "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, supra, 789 F.2d at 1331 (fn. omitted); see also, Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).

Plaintiff meets both criteria listed above. Plaintiff alleges that defendants forced him to move to an upper bunk even though plaintiff had a lower bunk chrono. Plaintiff later fell from the upper bunk and suffered injuries. Plaintiff has a chance of success as to his claims. In light of the complexity of his claims and chance of success, appointment of counsel is warranted.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motion for appointment of counsel (Dkt. No. 37) is granted; and

2. The Clerk of Court (together with the assistance of Sujean Park) is directed to locate forthwith an attorney admitted to practice in this court who is willing to accept the appointment.

sh2866.app

20120508

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