Warner v. Cate et al

Filing 39

ORDER signed by Magistrate Judge Edmund F. Brennan on 5/17/2011 ORDERING that pltf's 31 request for appointment of counsel is DENIED; w/in 45 days, dfts shall inquire into the status of any restrictions on pltf's access to his legal materials, eyeglasses, and the law library and any restrictions on pltf's ability to write and shall SHOW CAUSE why a protective order limiting or lifting such restrictions should not issue.(Yin, K)

1
2
3
4
5
6
7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE EASTERN DISTRICT OF CALIFORNIA

9

EARL WARNER,

10
11
12
13

Plaintiff,
vs.
MATTHEW L. CATE, et al.,
Defendants.

ORDER
/

14
15

No. CIV S-09-1568 KJM EFB P

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

16

U.S.C. § 1983. He has requested that the court appoint counsel. Dckt. No. 31. Plaintiff states

17

that he was transferred to Pleasant Valley State Prison earlier this year and that much of his

18

property was left behind, including all of his “declarations,” “evidentiary documents,” and

19

eyeglasses. Id. at 1. On January 20, 2011, plaintiff “suffered a nervous breakdown, resulting in

20

a self-inflicted laceration, which required eighteen stitches.” Id. Plaintiff was placed in a crisis

21

bed at the Correctional Treatment Center and later transferred to the Departmental Mental

22

Hospital, where he remains. Id. at 1-2. Plaintiff states that his access to the law library is very

23

limited at the hospital, that he is not allowed to have an ink pen or glasses in his room, and that

24

he is permitted to write only during group recreational programs. Id. at 2. Because plaintiff’s

25

current situation makes his litigation of this case difficult, plaintiff seeks appointment of counsel

26

to litigate on his behalf.
1

1

District courts lack authority to require counsel to represent indigent prisoners in § 1983

2

cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional

3

circumstances, the court may request counsel voluntarily to represent such a plaintiff. 28 U.S.C.

4

§ 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900

5

F.2d 1332, 1335-36 (9th Cir. 1990). The court finds that there are no exceptional circumstances

6

in this case, as plaintiff has demonstrated his ability to litigate effectively up to this point.

7

However, the alleged restrictions placed on plaintiff’s ability to write and his access to

8

his legal materials, eyeglasses, and the library may be the basis for a protective order limiting or

9

lifting such restrictions. Accordingly, the court will construe plaintiff’s motion as including a

10

request for such a protective order and will order defendants to inquire into the status of

11

plaintiff’s access to his legal materials, eyeglasses, and the law library and any restrictions on

12

plaintiff’s ability to write and to show cause why a protective order should not issue.

13

Accordingly, IT IS HEREBY ORDERED that:

14

1. Plaintiff’s March 15, 2011, request for appointment of counsel is denied.

15

2. Within 45 days of the date of this order, defendants shall inquire into the status of any

16

restrictions on plaintiff’s access to his legal materials, eyeglasses, and the law library and any

17

restrictions on plaintiff’s ability to write and shall show cause why a protective order limiting or

18

lifting such restrictions should not issue.

19

DATED: May 17, 2011.

20
21
22
23
24
25
26
2