United States District Court, N.D. California
ORDER OF SERVICE; DENYING MOTION FOR APPOINTMENT OF COUNSEL Doc. no. 3
VINCE CHHABRIA, District Judge.
Plaintiff, an inmate at the Pelican Bay State Prison ("PBSP") proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 against Dr. Laura Thomas. Plaintiff has filed a motion for leave to proceed in forma pauperis ("IFP") with a completed IFP application, which is granted in a separate order. Plaintiff also files a motion to appoint counsel, which is denied. The Court now addresses the claims asserted in Plaintiff's complaint.
I. Standard of Review
A federal court must screen any case in which a prisoner seeks redress from a governmental entity, or officer or employee of a governmental entity, to identify any cognizable claims and dismiss any that: (1) are frivolous or malicious; (2) fail to state a claim upon which relief may be granted; or (3) seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(a). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
Liability may be imposed on an individual defendant under 42 U.S.C. § 1983 if the plaintiff can show that the defendant's actions both actually and proximately caused the deprivation of a federally protected right. Lemire v. California Dep't of Corrections & Rehabilitation, 726 F.3d 1062, 1074 (9th Cir. 2013); Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). A person deprives another of a constitutional right within the meaning of Section 1983 if he does an affirmative act, participates in another's affirmative act or fails to perform an act which he is legally required to do, that causes the deprivation of which the plaintiff complains. Leer, 844 F.2d at 633.
II. Plaintiff's Claims
Plaintiff's complaint alleges the following. Since 2000, Plaintiff has suffered from massive internal bleeding and external hemorrhoid bleeding. Although various doctors attempted to ascertain the cause of the bleeding, including three colonoscopy surgeries, they were unable to do so. However, Plaintiff was never referred to a specialist to diagnose his condition. In February 2010, Plaintiff was transferred to PBSP. On February 5, 2013, Plaintiff read an article in the Men's Journal entitled, "An Aspirin a Day Keeps the Doctor Away, " and discovered that daily doses of aspirin, which he has been prescribed for twelve years, is the cause of his severe bleeding.
Defendant Dr. Laura Thomas, is Plaintiff's primary care doctor ("PCP") at PBSP and she should have known that aspirin increases the risk of internal bleeding. On February 5, 2013, Plaintiff attempted to contact Dr. Thomas to tell her the cause of his bleeding, but he could not do so. On February 6, 2013, Plaintiff attempted to obtain a special diet due to his chronic, painful internal bleeding, stomach pains, constipation, hemorrhoids, high blood pressure, and high cholesterol. On February 7 and 8, 2013, Plaintiff discovered he had a serious heart condition due to years of internal and external bleeding. On February 11, 2013, Plaintiff saw Dr. Thomas and she refused to stop Plaintiff's aspirin prescription and directed him to keep taking all of his prescribed medications. On February 14, 2013, Plaintiff could not stand without fainting and he was rushed to the medical clinic. At the clinic, Dr. Donald Venes informed Plaintiff that he must receive emergency blood transfusions to save his life. Dr. Venes was shocked that Dr. Thomas had continued to prescribe aspirin to Plaintiff. Plaintiff was transported to Sutter Coast Hospital where he received four blood transfusions.
Plaintiff asserts claims of deliberate indifference to his serious medical needs and medical malpractice against Dr. Thomas for failing to discontinue the aspirin she prescribed to Plaintiff and for failing to refer him to an expert to ascertain the cause of his bleeding. Liberally construed, Plaintiff's allegations state an Eighth Amendment claim for deliberate indifference to his serious medical needs and a state law claim of medical malpractice.
III. Motion to Appoint Counsel
Plaintiff moves for the appointment of counsel because the legal issues are complex and he is unable to adequately investigate or present the factual issues regarding his claims.
"[I]t 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). Nonetheless, under 28 U.S.C. § 1915(e)(1), the Court has the discretion to appoint counsel to "any person unable to afford counsel." The discretionary appointment of counsel typically is reserved for cases involving "exceptional circumstances." Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). "A finding of exceptional circumstances requires an evaluation of both the likelihood of success on the merits and the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved.' Neither of these factors is dispositive and both must be viewed together before reaching a decision." Id. Here, exceptional circumstances requiring the ...