(PC) Collins v. Kurgan

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BOBBY LEE COLLINS, No. 2:23-cv-1600 CSK P 12 Plaintiff, 13 v. ORDER 14 KURGAN, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se in an action brought under 42 U.S.C. § 1983. 18 Plaintiff requests a “state-appointed lawyer,” and states he has a mental illness, has a psychiatrist, 19 and is housed on the EOP yard.1 (ECF No. 45 at 1.) However, unlike in criminal cases where 20 indigent defendants are provided a lawyer, pro se prisoners in civil cases proceeding in forma 21 pauperis are not entitled to appointed lawyers. Further, district courts lack authority to require 22 counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. 23 Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney 24 to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 25 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

26 1 The Mental Health Services Delivery System Program Guide for the California Department of Corrections and Rehabilitation (“CDCR”) provides four levels of mental health care services: 27 Correctional Clinical Case Management System (“CCCMS”); Enhanced Outpatient (“EOP”); Mental Health Crisis Bed (“MHCB”); and inpatient hospital care. Coleman v. Brown, 2013 WL 28 6491529, at *1 (E.D. Cal. Dec. 10, 2013). 1 | When determining whether “exceptional circumstances” exist, the court must consider □□□□□□□□□□□ 2 || likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro 3 || sein light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 4 | (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The 5 || burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances 6 || common to most prisoners, such as lack of legal education and limited law library access, do not 7 || establish exceptional circumstances that warrant a request for voluntary assistance of counsel. 8 Plaintiff's mental health treatment does not demonstrate exceptional circumstances. Often 9 || this Court is faced with similar cases filed by prisoners who are proceeding pro se and receiving 10 | mental health treatment. Further, at this stage in the proceedings, the Court cannot determine 11 | whether plaintiff is likely to succeed on the merits. The record demonstrates that plaintiff can 12 | articulate his claims, and the case is currently in discovery. 13 Having considered the factors under Palmer, the Court finds that plaintiff has failed to 14 || meet his burden of demonstrating exceptional circumstances warranting the appointment of 15 || counsel at this time. 16 Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for the appointment of 17 || counsel (ECF No. 45) is denied without prejudice. 18 19 | Dated: December 10, 2024 A aA Aan Spe | CHI SOO KIM 71 UNITED STATES MAGISTRATE JUDGE 22 /1/coll1600.31 new(2) 23 24 25 26 27 28