Solomon v. Felker et al

Filing 161

ORDER signed by Magistrate Judge Kendall J. Newman on 06/18/15 ordering plaintiff's motion for legal property, for extension of time and for appointment of counsel 159 is denied. The clerk of the court shall serve a copy of this order on the Ninth Circuit Court of Appeals. (cc: USCA, 9th circuit) (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VINCENT SOLOMON,

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No. 2:08-cv-2544 KJN P

Plaintiff,
v.

ORDER

T. FELKER, et al.,
Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. Pending before the court is plaintiff’s June 1, 2015 motion for legal

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property, for an extension of time and for appointment of counsel. (ECF No. 159.) For the

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following reasons, this motion is denied.

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On March 30, 2015, the undersigned granted in part and denied in part defendants’

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summary judgment motion. (ECF No. 149.) On March 27, 2015, plaintiff filed an interlocutory

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appeal to the Ninth Circuit Court of Appeals regarding the March 30, 2015 order. (ECF No. 152.)

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In the pending motion, plaintiff alleges that his brief to the Ninth Circuit is due on August 5,

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2015. (ECF No. 159 at 1.) Plaintiff alleges that he “still” does not have access to his four boxes

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of legal property that he needs to prepare his brief. (Id. at 2.)

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The undersigned previously addressed a claim by plaintiff alleging denial of access to
legal property. On January 26, 2015, plaintiff filed a motion requesting that the court order prison
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officials to return his legal property. (ECF No. 140.) Plaintiff alleged that prison officials

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confiscated his legal property on October 8, 2014. (Id.) Plaintiff alleged that most of his legal

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property was stored in a warehouse. (Id.) Plaintiff alleged that prison officials would not give

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him access to his legal property without a court order. (Id.)

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On January 28, 2015, pursuant to the All Writs Act, the undersigned issued an order

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directing the Warden of the Substance Abuse Treatment Facility (“SATF”), where plaintiff is

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housed, to respond to plaintiff’s claims alleging denial of access to his legal property. (ECF No.

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141.) On February 5, 2015, SATF Litigation Coordinator Barba filed a declaration in response to

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the January 28, 2015 order. (ECF No. 143.) In relevant part, Litigation Coordinator Barba stated

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that plaintiff was housed in the Administrative Segregation Unit (“ASU”) pending the outcome of

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two disciplinary actions. (Id.) If found guilty, plaintiff would most likely serve his term in a

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Security Housing Unit (“SHU”). (Id.) If found guilty, plaintiff would be put up for transfer to an

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institution with a SHU. (Id.)

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Litigation Coordinator Barba further stated that when plaintiff was transferred to SATF,

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he arrived with approximately 16 cubic feet (or about 8 boxes) of legal material. (Id.) On

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October 17, 2014, plaintiff was issued his property, including 6 cubic feet (about 3 boxes) of legal

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material. (Id.) Due to the prison’s property-restriction policy, plaintiff was only allowed to have

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6 cubic feet of legal property in his cell. (Id.) Plaintiff’s remaining legal property was stored in

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the ASU and could be accessed during the weekdays by submitting a request to the E1 Law

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library. (Id.) Plaintiff could rotate/substitute out his boxes of legal material, but he could only

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have 6 cubic feet of legal material in his cell at any given time. (Id.) According to Litigation

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Coordinator Barba, there was no indication that plaintiff had submitted a request to access his

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legal property from storage or that he had sought to exchange the boxes he had in his cell with

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those in storage since he was given his property on October 17, 2014. (Id.)

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On February 13, 2015, the undersigned denied plaintiff’s January 26, 2015 motion for

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access to his legal property. (ECF No. 144.) The undersigned found that Litigation Coordinator

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Barba’s declaration indicated that plaintiff could request access to his stored legal property but

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had not done so. (Id.) The undersigned concluded that Litigation Coordinator Barba’s
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declaration demonstrated that plaintiff was not being denied access to his legal property. (Id.)

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In the pending motion, plaintiff does not allege that any circumstances described in

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Litigation Coordinator Barba’s declaration have changed. In other words, plaintiff is still housed

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in the SATF ASU. Plaintiff also does not describe any attempts to gain access to his stored legal

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property. For these reasons, the undersigned finds that plaintiff’s pending request for access to

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his legal property is not well supported.

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If plaintiff requires an extension of time to prepare his appellate brief, he shall make his
request to the Ninth Circuit.

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In the pending motion, plaintiff also requests the appointment of counsel. District courts

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lack authority to require counsel to represent indigent prisoners in section 1983 cases. Mallard v.

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United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may

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request an attorney to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell

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v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36

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(9th Cir. 1990). When determining whether “exceptional circumstances” exist, the court must

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consider plaintiff’s likelihood of success on the merits as well as the ability of the plaintiff to

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articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v.

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Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to

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appoint counsel). The burden of demonstrating exceptional circumstances is on the plaintiff. Id.

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Circumstances common to most prisoners, such as lack of legal education and limited law library

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access, do not establish exceptional circumstances that warrant a request for voluntary assistance

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of counsel.

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Having considered the factors under Palmer, the court finds that plaintiff has failed to

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meet his burden of demonstrating exceptional circumstances warranting the appointment of

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counsel at this time.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for legal property, for an extension of time and for appointment of

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counsel (ECF No. 159) is denied;

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2. The Clerk of the Court is directed to serve a copy of this order on the Ninth Circuit

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Court of Appeals.

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Dated: June 18, 2015

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Sol2544.pro

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