Robinson v. Kate et al
Filing
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ORDER signed by Magistrate Judge Allison Claire on 12/22/14 denying 55 Motion to Appoint Counsel and for certification of a class. (Plummer, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ANDRE JAMAL ROBINSON,
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Plaintiff,
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No. 2:11-cv-2555 MCE AC P
v.
ORDER
MATTHEW CATES, et al.,
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Defendants.
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Plaintiff, a state prisoner proceeding pro se and in forma pauperis with a civil rights
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action, moved for the appointment of counsel and for certification of this case as a class action.
As plaintiff recognizes in his motion, district courts may not require counsel to represent
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indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298
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(1989). However, where willing counsel is available, the district court “may request an attorney
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to represent any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1); Agyeman v.
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Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004), cert. denied, 545 U.S. 1128
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(2005).
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The district court may appoint such counsel where “exceptional circumstances” exist.
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Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009), cert. denied, 559 U.S. 906 (2010) (citing
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Agyeman, 390 F.3d at 1103). In determining whether or not exceptional circumstances exist, “a
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court must consider ‘the likelihood of success on the merits as well as the ability of the petitioner
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to articulate his claims pro se in light of the complexity of the legal issues involved.’” Palmer,
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560 F.3d at 970 (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). Circumstances
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common to most prisoners, such as lack of legal education and limited law library access, do not
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establish exceptional circumstances that would warrant a request for voluntary assistance of
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counsel. See, e.g., Guess v. Lopez, 2014 WL 1883875 at *5 (E.D. Cal. 2014) (Claire, M.J.).
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Plaintiff asserts that he will be unable to articulate his claims because defendants have a
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history of transferring prisoners who file meritorious lawsuits in order to moot the claims. He
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asserts that “there is a probability that the defendant may transfer Plaintiff in [an] attempt to avoid
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injunctive relief.” ECF No. 55 at 7. Plaintiff further asserts that because of his indigence and
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prisoner status, he does not have “full use of the discovery tools that are available to attorneys and
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non-prisoners,” such as depositions. ECF No. 55 at 7. He complains that he is thus “relegated to
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the use of [interrogatories] and request[s] for production of documents . . . which the defendants
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have failed to adequately respond to.” Id. Plaintiff further asserts that he will therefore be denied
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the opportunity to engage in the “rigorous questioning of officials by means of depositions.” ECF
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No. 55 at 7-8 (quoting Beard v. Banks, 548 U.S. 521, 535 (2006) (Plurality Opinion)).
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The court does not find exceptional circumstances warranting appointment of counsel in
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this case, at this time. As for the asserted transfer and mootness problem, the court has addressed
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this in a prior order, when it found that plaintiff has alleged a CDCR-wide policy that, as against
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defendant Giurbino, “may not be mooted by plaintiff’s transfer.” ECF No. 31 at 9. As for
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discovery, even without the financial and other means to take depositions, plaintiff has the ability
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to propound interrogatories, request documents, and engage in other forms of discovery, as well
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as the ability to compel discovery if defendants fail to respond adequately. The request for
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appointment of counsel will therefore be denied without prejudice. If plaintiff’s deployment of
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the discovery tools available to him prove to be inadequate in this case (either to oppose summary
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judgment or to try the case), he is not precluded from later renewing his motion.
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As plaintiff recognizes, he cannot represent a class without counsel, and therefore his
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request to certify a class will also be denied.
Accordingly, IT IS HEREBY ORDERED that plaintiff’s August 14, 2014 motion for the
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appointment of counsel and for certification of a class (ECF No.55), is DENIED.
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DATED: December 22, 2014
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