Aguirre v. County of Sacramento et al

Filing 33

ORDER signed by Magistrate Judge Kendall J. Newman on 3/4/2013 DIRECTING the Clerk to assign a district judge to this case; DENYING, without prejudice, plaintiff's 26 motion to appoint counsel; and DENYING plaintiff's 25 motion for reconsideration. Assigned to US District Judge John A. Mendez and US Magistrate Judge Kendall J. Newman for all further proceedings; new case number is 2:12-cv-2165 JAM KJN (PC). (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CARLOS R. AGUIRRE,
Plaintiff,

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vs.
COUNTY OF SACRAMENTO, et al.,
Defendants.

ORDER
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No. 2:12-cv-2165 KJN P

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

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U.S.C. § 1983. Plaintiff challenges the policies of the Sacramento Jail for transporting protective

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custody prisoners.

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Plaintiff and defendants Andris, Cooper, Martinez and Oania consented to

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proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). Defendants County of

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Sacramento, Jones, Place, and Kinder appeared on January 22, 2013, but have not filed a consent

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form. Accordingly, the Clerk of the Court is directed to assign a district judge to this action.

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Plaintiff 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

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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

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failed to meet his burden of demonstrating exceptional circumstances warranting the

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appointment of counsel at this time.

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Plaintiff seeks reconsideration of the court’s October 17, 2012 order denying his

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motion for class certification. On December 14, 2012, plaintiff filed a second motion for class

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certification. On January 9, 2013, the court denied this motion. Both motions were denied on

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grounds that plaintiff is a non-lawyer proceeding without counsel. In the pending motion,

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plaintiff appears to argue that if counsel were appointed, class certification would be appropriate.

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Because appointment of counsel is not warranted, plaintiff’s motion for

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reconsideration of the previous order denying his motion for class certification is denied. See

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Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (pro se prisoner plaintiffs are unable

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to fairly represent and adequately protect interests of the class).

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Moreover, the record does not demonstrate that class certification is warranted at

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this time. Rule 23(a) of the Federal Rules of Civil Procedure sets forth the prerequisites for class

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actions. Rule 23(b) sets forth the types of class actions which may be maintained. In the pending

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motion for reconsideration, plaintiff argues that this action satisfies the requirements of Rules

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23(a) and (b) and that counsel should be appointed.
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Rule 23(a) provides that:

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One or more members of a class may sue or be sued as
representative parties on behalf of all members only if:

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(1) the class is so numerous that joinder of all members is impracticable;
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(2) there are questions of law or fact common to the class;
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(3) the claims or defenses of the representative parties are typical
of the claims or defenses of the class; and

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(4) the representative parties will fairly and adequately protect the
interests of the class.

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Fed. R. Civ. P. 23(a).
Plaintiff proposes that the class be comprised of all protective custody inmates at

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the Sacramento County Jail. However, the record does not demonstrate that the proposed class is

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so numerous that joinder of all members is impracticable. In addition, the record does not

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demonstrate that questions of law and fact are common to all members of the proposed class.

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The record also does not demonstrate that the claims of the only identified representative party,

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i.e., plaintiff, are typical of the claims of the class.
Plaintiff has also not demonstrated that class certification is appropriate pursuant

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to Rule 23(b). For example, plaintiff has not shown that prosecuting separate actions by

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individual class members would create a risk of inconsistent adjudications that would establish

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incompatible standards of conduct for defendants. Fed. R. Civ. P. 23(b)(1).
For the reasons discussed above, plaintiff’s motion for reconsideration of the

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order denying his motion for class certification is denied.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. The Clerk of the Court is directed to assign a district judge to this case;

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2. Plaintiff’s January 14, 2013 motion for the appointment of counsel (Dkt No.

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26) is denied without prejudice; and

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3. Plaintiff’s motion for reconsideration (Dkt. No. 25) is denied.

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DATED: March 4, 2013

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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