Opinion
No. 2:20-cv-1295 DB P
07-30-2020
ERNEST L. COX, Plaintiff, v. VASUKI DARAM, et al. Defendants.
ORDER
Plaintiff is a state prisoner proceeding pro se with a civil rights action under 42 U.S.C. § 1983. Plaintiff alleges defendants were deliberately indifferent to his serious medical needs when they deprived him of the use of a continuous positive airway pressure ("CPAP") machine. By separate order, this court finds plaintiff has stated a cognizable Eighth Amendment claim against defendants. Herein, this court addresses plaintiff's motions for a temporary restraining order ("TRO") and for the appointment of counsel.
TEMPORARY RESTRAINING ORDER
Plaintiff seeks an order requiring defendants to provide him with a usable CPAP machine immediately. Plaintiff has adequately alleged an imminent threat of irreparable injury. See Caribbean Marine Serv. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988). This court recognizes that defendants have not yet appeared in this action. This court intends to rule on plaintiff's motion for a TRO within two weeks from the date of the present order. Below, this court orders service of the present order on a representative of the Office of the California Attorney General and on the Litigation Coordinator at Mule Creek State Prison. If defendants wish to oppose plaintiff's motion for a TRO, they must do so within ten days of the date of this order.
This court notes that, in his complaint, plaintiff states that he is also filing a renewed motion for a temporary restraining order. However, that motion does not appear to have been included with plaintiff's complaint for filing. This court therefore deems plaintiff's original motion for a temporary restraining order as renewed and considers it herein. --------
REQUEST FOR APPOINTMENT OF COUNSEL
In his complaint, plaintiff requests the appointment of counsel. The United States Supreme Court has ruled that district courts lack authority to require counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).
The test for exceptional circumstances requires the court to evaluate the plaintiff's likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances common to most prisoners, such as lack of legal education and limited law library access, do not establish exceptional circumstances that would warrant a request for voluntary assistance of counsel. In the present case, this court finds that plaintiff has articulated his claims thoroughly and well. At this time, this court does not find the required exceptional circumstances for appointment of counsel.
Accordingly, and good cause appearing, IT IS HEREBY ORDERED as follows:
1. This court deems plaintiff's motion for a TRO (ECF No. 1) to have been renewed. This court will rule on that motion within fourteen days of the filed date of this order. If defendants wish to oppose the motion, they must file any opposition within ten days of the filed //// date of this order. Any opposition filed must address the merits of plaintiff's motion and not be limited to procedural issues.
2. Plaintiff's motion for the appointment of counsel (ECF No. 5) is denied without prejudice to its renewal at a later stage of these proceedings.
3. The Clerk of the Court shall serve copies of this order on Monica Anderson, Supervising Deputy Attorney General, and on the Litigation Coordinator of Mule Creek State Prison by fax at (209)274-5018. Dated: July 30, 2020
/s/_________
DEBORAH BARNES
UNITED STATES MAGISTRATE JUDGE DLB:9/
DB/prisoner-civil rights/cox1295.tro