Jones v. Kuppinger et al

Filing 140

ORDER signed by Magistrate Judge Allison Claire on 04/23/18 GRANTING 139 Motion to Appoint Counsel. The clerk of court shall contact Sujean Park, Pro Bono Program Director for the purpose of locating an attorney admitted to practice in this court who is willing to accept appointment in this action for the purpose of preparing for and representing plaintiff at trial. Plaintiff's request to extend the deadline for filing initial pretrial statements is GRANTED; the current deadline 5/04/18 is VACATED until further order of this court. (Plummer, M)

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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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Plaintiff,

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No. 2:13-cv-0451 AC P

v.
ORDER
P. KUPPINGER, et al.,

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Defendants.

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Plaintiff Henry Jones is a state prisoner proceeding pro se with this civil rights action1

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against defendant correctional officers P. Kuppinger and G. Moore. Trial is scheduled to

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commence before the undersigned2 on Monday, October 22, 2018. In anticipation of trial and the

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imminent deadline for filing initial pretrial statements, plaintiff has filed a request to extend that

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deadline and for appointment of trial counsel. See ECF No. 139. For the reasons set forth below,

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plaintiff’s requests are granted; and the deadline for filing initial pretrial statements is vacated for

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all parties until further order of this court.
Plaintiff requests appointment of counsel based on his well-documented mental health

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challenges. See generally ECF No. 139. This is plaintiff’s fourth request for appointment of

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Plaintiff paid the filing fee in this action as a “three strikes litigant” under 28 U.S.C. § 1915(g).
See ECF Nos. 34-7.
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Pursuant to the consent of the parties, this action proceeds under the authority of the
undersigned magistrate judge for all purposes. See 28 U.S.C. § 636(c) and Local Rule 305(a).
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counsel. See ECF Nos. 41, 55, 63. The court granted plaintiff’s third request for the limited

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purpose of appointing counsel to represent plaintiff at a settlement conference. ECF Nos. 72, 75.

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The case did not settle. ECF No. 84.

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The applicable standards for assessing an indigent civil litigant’s request for appointment

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of counsel are as follows. The district court may request the voluntary assistance of counsel

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pursuant to 28 U.S.C. § 1915(e)(1) only in certain “exceptional circumstances.” 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); see also Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989) (district

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courts do not have authority to require attorneys to represent indigent prisoners in Section 1983

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cases). 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 his ability to articulate his claims pro se

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

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Cir. 2009). 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 supporting appointment of counsel. Id.

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In his instant request, plaintiff avers that his mental health is deteriorating and impairing

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his ability to prepare for trial. Having considered plaintiff’s supporting documentation, as well as

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the record of this case as a whole, the court finds that exceptional circumstances support the

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appointment of pro bono counsel to present plaintiff’s case at trial.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for appointment of counsel, ECF No. 139, is GRANTED.

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2. The Clerk of Court is directed to contact Sujean Park, Pro Bono Program Director, for

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the purpose of locating an attorney admitted to practice in this court who is willing to accept

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appointment in this action for the purpose of preparing for and representing plaintiff at trial.

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3. Plaintiff’s request to extend the deadline for filing initial pretrial statements is

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GRANTED; the current deadline (May 4, 2018) is vacated until further order of this court.

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DATED: April 23, 2018

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