Morris v. Daly et al

Filing 39

ORDER denying 38 Motion to Appoint Counsel signed by Magistrate Judge Allison Claire on 06/19/15. Plaintiff shall file and serve his opposition to the pending motion for summary judgment on or before 7/15/15; defendants' reply, if any, shall be filed and served within 14 days thereafter. (Plummer, M) Modified on 6/22/2015 (Plummer, M).

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LEON E. MORRIS,

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Plaintiff,

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No. 2:12-cv-2845 JAM AC P

v.

ORDER

DALY, et al.,

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Defendants.

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Plaintiff is a prisoner at California State Prison Sacramento (CSP-SAC), who proceeds pro

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se and in forma pauperis with this civil rights action against defendants Daly, Donahoo and

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Prereira, all CSP-SAC Appeals Coordinators. Plaintiff claims that defendants retaliated against

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him for filing administrative grievances and initiating litigation in violation of the First

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Amendment. Defendants filed a motion for summary judgment on April 6, 2015. ECF No. 32.

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Because plaintiff had “several lawsuits pending . . . and [was] being overwhelmed with

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paperwork,” ECF No. 36 at 1-2, he requested a 120-day extension of time within which to file his

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opposition to the motion. The court authorized an extension of 60 days after service of the

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court’s order, ECF No. 37, rendering plaintiff’s opposition due on or before June 29, 2015, by

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application of the mailbox rule.1

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Under the prison mailbox rule, a document is deemed served or filed on the date a prisoner
(continued…)
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Presently pending is plaintiff’s second request for appointment of counsel. See ECF Nos.

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16, 17. Plaintiff avers, among other things, that he is “absolutely lost” in this litigation, ECF No.

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38 at 9, due to his physical limitations (including cervical spondylosis) and associated pain; his

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mental disabilities (including schizoaffective disorder and depression); and the side effects of his

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pain and psychotropic medications. Plaintiff states that he is indigent and unlearned in the law,

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and has previously relied on other inmates to prepare his court filings. Plaintiff has submitted an

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affidavit from another prisoner who states that he has assisted plaintiff with his civil court

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proceedings since 2013, but is no longer available because he is now tutoring GED students and

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will soon be transferred to another institution. See ECF No. 38 at 11-2.

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The United States Supreme Court has ruled that district courts lack authority to require

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counsel to represent indigent prisoners in Section 1983 cases. Mallard v. United States Dist.

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Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may

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request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer,

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

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

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plaintiff’s likelihood of success on the merits as well as the ability of the plaintiff to articulate his

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

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965, 970 (9th Cir. 2009); see also Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986);

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Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). The burden of demonstrating exceptional

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circumstances is on the plaintiff. Palmer, 560 F.3d at 970. Circumstances common to most

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

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requisite exceptional circumstances.

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Several factors militate against appointment of counsel in this case. Plaintiff’s indigence

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and lack of legal training are circumstances common to most prisoners. Also, many prisoners

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struggle with physical and mental disabilities and the side effects to medications. Significantly,

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signs the document and gives it to prison officials for mailing. See Houston v. Lack, 487 U.S.
266 (1988) (establishing prison mailbox rule); Campbell v. Henry, 614 F.3d 1056, 1059 (9th Cir.
2010) (applying the mailbox rule to both state and federal filings by incarcerated inmates).

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plaintiff is a frequent litigator in this court; he has filed more than a dozen cases since 2010, and

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currently has six open cases.2 Plaintiff’s numerous filings reduce the relative significance of each

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case in the request for counsel context; the court cannot feasibly appoint counsel in each of

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plaintiff’s cases.

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Additionally, the legal issues in this action are not particularly complex, and plaintiff is

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well positioned to articulate his factual arguments pro se. The pending motion for summary

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judgment examines twenty of plaintiff’s administrative appeals which were reviewed by one or

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more of the defendants. See ECF No. 32-2 at 2. Defendants contend that their challenged

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conduct was not retaliatory but that they properly screened out or canceled each appeal according

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to applicable rules and regulations, and that plaintiff failed to respond with a properly submitted

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and corrected appeal. Any opposition to defendants’ motion must rebut defendants’ specific

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factual allegations concerning each appeal. This task is more appropriately retained by plaintiff,

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who submitted each appeal, than by appointed legal counsel. Moreover, because prisoners are not

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entitled to prison grievance procedures as a matter of course, a claim that prison officials failed to

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properly process or resolve a particular grievance is generally not cognizable,3 indicating that

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plaintiff may not be able to succeed on the merits of his claims. Because only a limited number

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of lawyers are available for voluntary appointment, their assignments must be limited to cases

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which turn on complex legal issues and demonstrate a likelihood of success on the merits.

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For these several reasons, the court finds that plaintiff has not met his burden of

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demonstrating exceptional circumstances warranting appointment of counsel in the instant case at

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the present time. However, in light of the court’s decision, plaintiff will be accorded additional

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time to file an opposition to the pending motion for summary judgment.

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This court may take judicial notice of its own records and the records of other courts. See
United States v. Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004); United States v. Wilson, 631
F.2d 118, 119 (9th Cir. 1980); see also Fed. R. Evid. 201 (court may take judicial notice of facts
that are capable of accurate determination by sources whose accuracy cannot reasonably be
questioned).
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See e.g. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Buckley v. Barlow, 997 F.2d
494, 495 (8th Cir. 1993).

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for appointment of counsel, ECF No. 38, is denied without

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prejudice; and

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2. Plaintiff shall file and serve his opposition to the pending motion for summary

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judgment on or before July 15, 2015; defendants’ reply, if any, shall be filed and served within 14

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days thereafter.

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SO ORDERED.

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DATED: June 19, 2015

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