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Fields v. Dzurenda

United States District Court, D. Nevada

July 24, 2019

MITCHELL FIELDS, Plaintiff,
v.
JAMES DZURENDA, et al., Defendants.

          ORDER

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         Plaintiff Mitchell Fields, who is incarcerated in the Nevada Department of Corrections (“NDOC”), bring this civil rights case under 42 U.S.C. § 1983. For the following reasons, the Court sua sponte refers this case to the Pro Bono Program (“Program”) adopted in General Order 2017-07 for appointment of pro bono counsel.

         II. BACKGROUND

         The Court allowed the following claims in Plaintiffs First Amended Complaint[1] to proceed in this action after screening: two claims for Eighth Amendment deliberate indifference to serious medical needs and one Fourteenth Amendment equal protection claim. (ECF No. 9 at 2.)

         In support of the first surviving claim, Plaintiff alleges that he has been denied treatment for a botched blepharoplasty that has left him with crossed eyes, double vision, and severe headaches. (See ECF No. 8 at 5-6.) In support of his second surviving claim, Plaintiff alleges that he has been denied treatment for hepatitis C. (Id. at 12.) In support of his third surviving claim, Plaintiff alleges that he was removed from educational and vocational programs because he was too old. (Id. at 13.)

         III. LEGAL STANDARD

         There is no constitutional right to appointed counsel in a § 1983 action. E.g., Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), opinion reinstated in pertinent part, 154 F.3d 952, 954 n.1 (9th Cir. 1998) (en banc). The provision in 28 U.S.C. § 1915(e)(1), however, gives a district court the discretion to request that an attorney represent an indigent civil litigant. 28 U.S.C. § 1915(e)(1) (“The court may request an attorney to represent any person unable to afford counsel.”); see, e.g., Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). Yet, the statute does not give the court the authority to compel an attorney to accept appointment, such that counsel remains free to decline the request. See Mallard v. U.S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296, 310 (1989). Furthermore, while the decision to request counsel lies within the discretion of the district court, the court may exercise this discretion to request counsel only under “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 plaintiff's ability to] articulate his claims pro se in light of the complexity of the legal issues involved.” Id. (quoting Wilborn, 789 F.2d at 1331) (internal quotation marks omitted).

         IV. DISCUSSION

         Extraordinary circumstances exist in this case to warrant the appointment of counsel. First, Plaintiffs case presents complex legal and medical issues related to hepatitis C and blepharoplasty, and it is clear that Plaintiff has little ability to articulate his claims. Plaintiff experiences: “constant pain in the upper right-side of his abdomen (liver), spontaneous occasionally [sic] vomiting, constant itching of his arms, legs and abdomen, constantly being lethargic and also being very weak, [and] mild ascites that cause fluids in the abdomen to accumulate which also causes swelling of his hands and legs making it painful for [Plaintiff] to grasp a pen and write or sit for any lengths [sic] of times.” (ECF No. 36 at 5.) Plaintiff also alleges that he cannot receive assistance from other inmates to review his medical records and does not have access to the law library. (Id.) Furthermore, “[w]ithout counsel and while incarcerated, [Plaintiff is] expected to locate a medical expert willing to submit an affidavit on his behalf, manage discovery for his multiparty multi-claim lawsuit, and conduct a full trial.” Clemons v. Hill, 743 Fed.Appx. 885, 886 (9th Cir. 2018). These circumstances, considered collectively, suggest a finding of exceptional circumstances.

         Second, there is at least some likelihood of success on the merits. Plaintiff alleges that he has been denied life-saving treatment for his hepatitis C as well as treatment for his eye condition. Plaintiffs claims do not appear to be trivial or frivolous. In light of the serious complexity of the issues in Plaintiff's case and his inability to articulate his claims, Plaintiff has shown sufficient likelihood of success to warrant appointment of counsel.

         Third, Plaintiffs pro se First Amended Complaint, which must be liberally construed, suggests that Plaintiff is challenging NDOC's policy of refusing curative treatment for hepatitis C. (See ECF No. 8 at 12.) Given that numerous incarcerated individuals currently are challenging NDOC's policy for treating hepatitis C, [2] the Court finds that extraordinary circumstances exist in this case to warrant appointment of counsel.

         Accordingly, the Court will sua sponte refer this case to the Pro Bono Program.[3]

         V. ...


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