Moncrief v. California Department of Corrections and Rehabiliation et al

Filing 104

ORDER signed by Magistrate Judge Allison Claire on 1/26/2017 DENYING plaintiff's 103 motion for appointment of counsel. The deadline for replacement counsel to appear in this case will remain 2/2/2017. If replacement counsel does not appear by that date, plaintiff shall continue to proceed in pro se. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN PHILIP MONCRIEF,

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No. 2:12-cv-0414 MCE AC P

Plaintiff,
v.

ORDER

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, et al.,

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Defendants.

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During a closed hearing on November 2, 2016, the court granted counsels’ motion to

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withdraw and plaintiff was given sixty days to retain replacement counsel. ECF No. 100.

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Plaintiff was cautioned that if replacement counsel did not file a notice of appearance by January

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3, 2017, he would have to continue proceeding in pro se. Id. He was further cautioned that the

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court would only grant an extension of time if he was making concrete progress toward securing

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counsel. Id.

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On December 21, 2016, the court granted plaintiff a thirty-day extension of the time for

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replacement counsel to make an appearance, based on plaintiff’s representation that the attorneys

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he had contacted were not willing to look at his case until after the holidays. ECF No. 102.

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Plaintiff was warned that no further extensions would be granted unless he showed that he was

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close to hiring new counsel. Id. Plaintiff now requests that the court appoint counsel to represent
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him going forward. ECF No. 103.
The United States Supreme Court has ruled that district courts lack authority to require

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counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490

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U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the

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voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d

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1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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“When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the

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likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims

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pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965,

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970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden

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of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to

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most prisoners, such as lack of legal education and limited law library access, do not establish

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exceptional circumstances that would warrant a request for voluntary assistance of counsel.

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In his request, plaintiff alleges mishandling of his case, and once again refers to the

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court’s previous comment that this case was originally being handled as if plaintiff was

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proceeding in pro se. ECF No. 103. Plaintiff misunderstands the court’s previous comment. In

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stating that the case was being handled as if plaintiff were proceeding pro se, the court was

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referring to the way in which the case was being handled administratively. The court was not

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commenting on the quality of counsel’s representation. While plaintiff is correct that his previous

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counsel was sanctioned, the sanction was for $250.00 jointly for failing to respond to defendants’

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motion to dismiss and failing to appear at the hearing on the motion. ECF No. 68. It was not for

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$500.00 each for “moving forward as if a pro per was running the suit” as plaintiff appears to

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believe. ECF No. 103. Regardless, retained counsels’ alleged mishandling of the case and the

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fact that they were sanctioned does not create an exceptional circumstance warranting a request

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for voluntary assistance of counsel. Nor does it change the potential merit of plaintiff’s claims,

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and therefore his likelihood of success on those claims, or his ability to articulate those claims on

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his own. On the current record, the court is unable to assess the likelihood of success on the

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merits and plaintiff appears able to adequately express himself and his positions.
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Plaintiff has not met his burden of showing that extraordinary circumstances exist in this

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case and his request for appointment of counsel will be denied.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for appointment of counsel (ECF No. 103) is denied.

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2. The deadline for replacement counsel to appear in this case will remain February 2,

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2017. If replacement counsel does not appear by that date, plaintiff shall continue to proceed in

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pro se.

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DATED: January 26, 2017

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