Jones v. Virga et al

Filing 19

ORDER signed by Magistrate Judge Kendall J. Newman on 1/7/2014 DENYING, wihthout prejudice, plaintiff's 17 request for appointment of counsel. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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HENRY A. JONES,

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No. 2:12-cv-2695 MCE KJN P

Plaintiff,
v.

ORDER

G. WHITTED, et al.,
Defendants.

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Plaintiff is a state prisoner, currently incarcerated at California State Prison, Los Angeles

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County (CSP-LAC). Plaintiff proceeds pro se in this civil rights action, brought pursuant 42

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U.S.C. § 1983, which challenges conditions of plaintiff’s confinement when he was incarcerated

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at California State Prison-Sacramento (CSP-SAC) in 2011. On November 25, 2013, this court

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found that plaintiff’s Third Amended Complaint, together with exhibits attached to plaintiff’s

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previously-filed complaints, appears to state potentially cognizable claims against defendants G.

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Whitted, J. Jones and D. Reed. (See ECF No. 15.) By separate order the court is ordering service

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of process upon those defendants.

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Plaintiff now requests the appointment of counsel, on the ground that he “is a mental

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Health inmate [with] a Disability (mentally) and Does not comprehend a civil law or procedures.”

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(Sic.) (ECF No. 17 at 1.) Plaintiff has submitted two exhibits in support of his request. The first

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exhibit is an October 9, 2012 declaration by CSP-SAC Senior Librarian A. Nappi, which states in
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pertinent part that plaintiff “may be unable to effectively communicate with the court or fully

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prosecute this action due to the claimed disability Low Reading Level/Lack of concentration/Low

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cognitive fuction (sic) (Disability)[.] Assistance of Counsel (Requested Accommodation).”

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(ECF No. 17 at 3.) The second exhibit is comprised of excerpts from a March 28, 2007 letter (27-

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page evaluation) written by neuropsychologist Deborah Ely Budding, Ph.D., to Deputy Federal

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Public Defender Anne Hwang. Dr. Budding’s evaluation notes that plaintiff has cognitive and

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mental health challenges, and opines that “it is unlikely that Mr. Jones would be able to reliably

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fill out his habeas petition paperwork in a complete and timely fashion without assistance.” (ECF

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No. 17 at 16.)

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District courts lack authority to require any attorney to represent indigent prisoners in

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Section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). However, in

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“exceptional circumstances,” the court may request that an attorney voluntarily represent a civil

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rights plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.

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

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whether “exceptional circumstances” exist, the court must consider the plaintiff’s likelihood of

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success on the merits as well as the ability of the plaintiff to articulate his claims pro se in light of

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the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).

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The burden of demonstrating exceptional circumstances is on the plaintiff. Id. 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 warrant a request for voluntary assistance of counsel.

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Having considered the factors under Palmer, the court finds that plaintiff has failed to

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meet his burden of demonstrating, at the present time, exceptional circumstances warranting the

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appointment of counsel. While it appears that plaintiff may have significant cognitive and

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psychological limitations, these matters are common to many prisoners. Moreover, Dr.

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Budding’s evaluation is nearly seven years old, and the opinion of the CSP-SAC librarian lacks

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objective substantiation (e.g., attachment of a recent reading score). Should plaintiff seek to

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again request appointment of counsel, he must submit current medical and other records

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demonstrating his alleged psychological and cognitive limitations. Plaintiff’s instant request will
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therefore be denied without prejudice.
Accordingly, IT IS HEREBY ORDERED that plaintiff’s request for appointment of
counsel (ECF No. 17), is denied without prejudice.

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SO ORDERED.

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Dated: January 7, 2014

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jone2695.31.kjn

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