IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
May 23, 2012
TYRONE MORGAN, PLAINTIFF,
JOHN W. HAVILAND, ET AL., DEFENDANTS.
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 action brought pursuant to the Americans with Disabilities Act ("ADA"). Pending before the court is plaintiff's motion for appointment of counsel filed May 16, 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 defendant California Department of Corrections and Rehabilitation violated the ADA by locking him in his cell when the outdoor temperature exceeded 90 degrees, rather than allowing him to go to the day room. Plaintiff has a chance of success as to his claim. In light of the complexity of his claim, appointment of counsel is warranted.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for appointment of counsel (Dkt. No. 83) is granted; and
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.
© 1992-2012 VersusLaw Inc.