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Flynn v. Dzurenda

United States District Court, D. Nevada

July 24, 2019

SHAWN FLYNN, Plaintiff,
v.
JAMES DZURENDA, et al., Defendants.

          ORDER

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE.

         I. SUMMARY

         Plaintiff 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.

         II. BACKGROUND

         Plaintiff 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.)

         The FAC contains similar allegations to the initial complaint but appears to add an equal protection claim to Count I. (See ECF No. 14 at 5.)

         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 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.

         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. 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 of counsel.

         Third, 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, [1] 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.

         V. ...


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