Christ v. Blackwell et al

Filing 182

ORDER signed by Magistrate Judge Edmund F. Brennan on 9/23/15 DENYING 177 Motion to Appoint Counsel. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JON CHRIST,

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Plaintiff,

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No. 2:10-cv-0760 EFB P

v.

ORDER

R. BLACKWELL, et al.,

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Defendants.

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

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U.S.C. § 1983. He requests that the court appoint counsel. District courts lack authority to

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require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States

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

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

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

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

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

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his claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560

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F.3d 965, 970 (9th Cir. 2009). Having considered those factors, the court finds there are no

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exceptional circumstances in this case.

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Plaintiff complains that, because he has no lawyer, defendants have refused his document

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production requests. However, as plaintiff is aware, his motion to compel further responses to

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those requests was denied because plaintiff failed to identify the specific responses he found

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inadequate and describe why they were inadequate. ECF No. 45. Plaintiff did not file a more

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specific motion to compel despite the court’s order telling him what was required in such a

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motion.

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Plaintiff also complains that he hasn’t been able to communicate with his witnesses, both

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incarcerated and free. Plaintiff has successfully obtained the court’s intervention to gain access to

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these witnesses; prison officials have complied with the court’s orders that they permit plaintiff to

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communicate with his incarcerated witnesses and provide plaintiff with the last known addresses

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of his released witnesses. ECF Nos. 138, 157. Plaintiff does not explain how appointment of

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counsel will convince these individuals to cooperate with his case if he has thus far been unable to

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do so. If plaintiff’s witnesses do not wish to communicate with plaintiff and/or refuse to testify

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voluntarily, plaintiff may follow the procedures set forth by the court for obtaining the presence at

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trial of witnesses who will not voluntarily testify. ECF No. 46 at 2-4. While plaintiff states that

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his witnesses are “gone” and he has “no way to locate them,” the record in this action shows that

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plaintiff has been granted access to his incarcerated witnesses and been provided with any last

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known addresses of his unincarcerated witnesses.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s request for appointment of

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counsel (ECF No. 177) is denied.

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DATED: September 23, 2015.

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