Williams v. Freeze et al

Filing 30

ORDER signed by Magistrate Judge Kendall J. Newman on 3/17/2014 GRANTING plaintiff's 27 request for an extension of time, and plaintiff shall file and serve his opposition to defendant Dernoncourt's motion to dismiss on or before 4/15/20 14; plainitff's 26 request for judicial intervention is GRANTED, and defendants' counsel shall query the CDCR to ascertain the current business or home address of defendant Boyd as instructed in this order; defendants' counsel is REMINDED of the 14-day deadline for filing and serving a statement concerning the transfer of plaintiff's legal materials; and plaintiff's 28 request for appointment of counsel is DENIED without prejudice. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANDRES WILLIAMS,

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No. 2:12-cv-2894 KJM KJN P

Plaintiff,

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v.

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FREEZE, et al.,

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ORDER

Defendants.

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Plaintiff proceeds in forma pauperis and without counsel in this civil rights action filed

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pursuant to 42 U.S.C. § 1983. Plaintiff makes several requests.
First, plaintiff seeks an extension of time within which to file an opposition to the motion

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to dismiss filed February 7, 2014, by defendant Dernoncourt. Plaintiff states that receipt of his

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legal materials has lagged behind his transfer from High Desert State Prison (HDSP) to Kern

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Valley State Prison (KVSP), and that he requires evidence of a court deadline to obtain adequate

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access to the law library. Consistently, on March 3, 2014, the court directed the Attorney

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General’s Office to contact the appropriate officials at HSDP and KVSP to facilitate the

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immediate transfer of plaintiff’s legal materials, and to file and serve a statement concerning this

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matter within fourteen days. (See ECF No. 24.) Plaintiff has demonstrated good cause

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warranting the requested four-week extension of time.

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Second, plaintiff requests the assistance of the court in obtaining accurate information to

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serve process on defendant Boyd. Although plaintiff has timely responded to the court’s January

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7, 2014 order directing plaintiff to submit alternative service information (see ECF No. 16),

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plaintiff has submitted the same address he previously provided for defendant Boyd, albeit with

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“Special Instructions” indicating that Boyd was working at California State Prison-Solano (CSP-

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SOL), "B" Side, “visiting strip officer post #251478,” on March 20, 2011, until at least July 22,

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2012. (See ECF No. 25). However, prior attempted service of process on defendant Boyd at

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CSP-SOL was returned unserved due to “insufficient identifying information, unable to locate.”

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(See ECF Nos. 14, 16.) The court will therefore direct the Attorney General’s Office to inquire as

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to the current business or home address of defendant Boyd, and provide any new service

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information to plaintiff and the court (or may file proof that it has provided such information

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confidentially to the U.S. Marshal’s Office for service).

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Third, plaintiff requests the appointment of counsel. Plaintiff states that he has a tenth-

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grade education, is unlearned in the law, and has limited access to the prison law library. Plaintiff

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also avers that he is indigent and cannot afford to obtain counsel on his own, that his case has

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merit, and that an attorney will be better able to obtain and present evidence necessary for

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plaintiff to prevail in this action.

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Plaintiff is informed that district courts lack authority to require counsel to represent

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indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298

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(1989). In exceptional circumstances, the court may request an attorney to voluntarily to

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represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017

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

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

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

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se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970

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(9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The

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burden of demonstrating exceptional circumstances is on the plaintiff. Id.

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Plaintiff’s asserted circumstances are common to most prisoners. A tenth-grade

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education, lack of legal education, and limited law library access do not establish exceptional

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circumstances warranting appointment of counsel. To date, the court has found the allegations of

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plaintiff’s complaint, and his various other filings, to be sufficiently articulate. This case is not

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exceptionally complex -- it is limited to one legal claim, a First Amendment retaliation claim,

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against each of three defendants. Plaintiff may obtain the evidence he seeks through discovery.

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For these reasons, the court finds that plaintiff has failed to meet his burden of demonstrating

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exceptional circumstances warranting the appointment of counsel at this time.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for an extension of time (ECF No. 27), within which to file an

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opposition to defendant Dernoncourt’s motion to dismiss filed February 7, 2014, is granted;

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plaintiff shall file and serve his opposition on or before April 15, 2014.

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2. Plaintiff’s request for judicial intervention (ECF No. 26), is granted, as follows:

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a. Defendants’ counsel (the Attorney General’s Office) shall query the California

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Department of Corrections and Rehabilitation (CDCR), to ascertain the current business or home

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address of defendant Boyd.
b. If defendants’ counsel ascertains the current business or home address of defendant

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Boyd, whether he is still employed with CDCR, another California state agency, or an unrelated

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business, counsel shall so inform plaintiff and the court (or may file proof that it has provided

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such information confidentially to the U.S. Marshal’s Office for service).
c. If defendants’ counsel cannot ascertain the current business or home address of

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defendant Boyd, after conducting a good faith inquiry, counsel shall so inform plaintiff and the

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court.
d. Defendants’ counsel shall file and serve the appropriate response within 21 days after

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the filing date of this order.
3. Defendants’ counsel is reminded of the 14-day deadline for filing and serving a

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statement concerning the transfer of plaintiff’s legal materials. (See ECF No. 24 (filed Mar. 3,

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2014).)
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4. Plaintiff’s request for appointment of counsel (ECF No. 28), is denied without
prejudice.

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SO ORDERED.

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Dated: March 17, 2014

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/will2894.8E.sup.misc.

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