United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE.
Shawn Flynn, 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.
has filed a First Amended Complaint (“FAC”) (ECF
No. 14) that contains similar allegations to the initial
complaint (ECF No. 6) that the Court previously screened (ECF
No. 5). (See ECF No. 16 at 2-3 (describing
differences between the initial complaint and the FAC).) The
FAC has not been screened. In the initial complaint,
Plaintiff alleged in Count I that certain Defendants created
a policy that denied Plaintiff treatment for viral infection
with hepatitis C (“HCV”). (See ECF No. 6
at 4-5.) In Count II, Plaintiff alleged that certain
Defendants violated the Americans with Disabilities Act
(“ADA”) and Rehabilitation Act (“RA”)
by failing to provide Plaintiff with any treatment for HCV.
(Id. at 6.) In Count III, Plaintiff alleged that Dr.
Bryan negligently and intentionally inflicted emotional
distress by informing Plaintiff that NDOC would not treat his
HCV due to cost. (Id. at 7-8.) After screening the
initial complaint, the Court allowed the following claims to
proceed: deliberate indifference to serious medical needs; an
ADA and RA claim; and a claim for intentional infliction of
emotional distress. (ECF No. 5 at 13.) The Court dismissed
Plaintiffs claim for negligent infliction of emotional
distress with prejudice. (Id.)
contains similar allegations to the initial complaint but
appears to add an equal protection claim to Count I.
(See ECF No. 14 at 5.)
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).
circumstances exist in this case to warrant the appointment
of counsel. First, Plaintiffs case presents complex legal and
medical issues related to HCV. Thus, “[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 multi-party multi-claim lawsuit, and
conduct a full trial.” Clemons v. Hill, 743
Fed.Appx. 885, 886 (9th Cir. 2018). The Ninth Circuit has
found that these circumstances are exceptional. Id.
In light of the complexity of the issues presented, Plaintiff
has little ability to articulate his claims pro se.
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. Plaintiffs claims do not
appear to be trivial or frivolous. In light of the serious
complexity of the issues in Plaintiffs case, Plaintiff has
shown sufficient likelihood of success to warrant appointment
Plaintiffs pro se First Amended Complaint shows that
Plaintiff is challenging NDOC's policy of refusing
curative treatment for hepatitis C. (ECF No. 14 at 3, 5-6.)
Given that numerous incarcerated individuals currently are
challenging NDOC's policy for treating hepatitis C,
Court finds that extraordinary circumstances exist in this
case to warrant appointment of counsel.
the Court will sua sponte refer this case to the Pro