MacGregor v. Dial et al

Filing 63

ORDER signed by Magistrate Judge Allison Claire on 11/6/14 denying 57 Motion to Appoint Counsel. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KEVIN ANTHONY MACGREGOR,

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No. 2:13-cv-1883 JAM AC P

Plaintiff,
v.

ORDER

DIAL, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se with a civil rights action, has requested
appointment of counsel.
The United States Supreme Court has ruled that district courts lack authority to require

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counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490

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

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voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d

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1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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The test for exceptional circumstances requires the court to evaluate the plaintiff’s

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likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in

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

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Cir. 2009) (district court did not abuse discretion in declining to appoint counsel); Wilborn v.

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Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir.
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1983). Circumstances common to most prisoners, such as lack of legal education and limited law

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library access, do not establish exceptional circumstances that would warrant a request for

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voluntary assistance of counsel.

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Plaintiff recounts that he was placed in administrative segregation on July 29, 2014. ECF

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No. 57 at 1. He claims he has had access only to a pen-filler for his writing. Id. at 1, 3. He

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asserts that the prison law library is only available for three hours on Sundays and can only

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accommodate six inmates in cages but that there is an average of 16-20 inmates who need to

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attend. Id. at 1-2. Plaintiff avers that his ad seg placement deprives him of access to a computer,

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a typewriter, the Local Rules and the Federal Rules of Civil Procedure, as well as other legal

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materials. Id. at 2-3. Plaintiff also contends that his legal mail is being “obstruct[ed].” Id. at 3.

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Plaintiff also cites his “failing health” as a result of having Hepatitis C as another factor that

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hampers his ability to proceed pro se in this case. Id. at 3. Plaintiff believes he needs counsel to

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handle discovery matters and to present his case to a jury. Id. at 3-4.

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Plaintiff contends that on two separate occasions, if his mother had not called the court

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clerk, his case would have been dismissed. ECF No. 61 at 2. He refers to the order, ECF No. 4,

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filed on September 19, 2013, requiring plaintiff to return forms and copies in order for defendants

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to be served. Id. He also references defendants’ since-vacated motion to dismiss the first

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amended complaint, ECF No. 36, filed on March 12, 2014. Id. He maintains that the paging

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system is insufficient as prisoners often do not know precisely what to ask for and that inmates

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who send material to the library for copying via paging will not receive the copies for a week. Id.

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He contends that he can have only one pen-filler a week for writing and when his ran out, he had

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to wait two days to exchange it, which meant that he when he finished his writing, he had to wait

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an additional week for copies to be made at the library. Id. at 3-4.

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Defendants filed a motion to dismiss and a motion for partial summary judgment on May

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6, 2014. ECF Nos. 45, 46. Pursuant to plaintiff’s request (ECF No. 48), plaintiff’s was granted

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an extension of time to file his response to the motions. ECF No. 49. On June 17, 2014, plaintiff

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timely filed an opposition to the motion to dismiss and a separate opposition to the partial

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summary judgment motion. ECF Nos. 51, 52. On June 26, 2014, defendants filed a reply (ECF
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Nos. 54, 55) to each opposition. The motions have been submitted.
Plaintiff cites a number of cases in support of his request for appointment of counsel. See

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ECF No. 61, at 4 (citing Lewis v. Casey, 518 U.S. 343 (1996); Bounds v. Smith, 430 U.S. 817

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(1977)). In doing so, plaintiff demonstrates his ability to support his motion with case authority

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while proceeding pro se, even under the restrictions of ad seg. He does so as well in his

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opposition to defendants’ pending motions, which he evidently was able to complete prior to his

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ad seg placement.

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In Bounds, the Supreme Court held “that the fundamental constitutional right of access to

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the courts requires prison authorities to assist inmates in the preparation and filing of meaningful

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legal papers by providing prisoners with adequate law libraries or adequate assistance from

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persons trained in the law.” 430 U.S. at 828 (footnote omitted). In Lewis, the High Court made

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clear that “Bounds did not create an abstract, freestanding right to a law library or legal

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assistance. . . .” 518 U.S. at 351. Rather, to establish a denial of a right of access-to-the-courts

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claim, an inmate must show an actual injury; he must show that he has been wholly frustrated by

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a prison law library or legal assistance program in his efforts to pursue a non-frivolous claim

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concerning his conviction or conditions of confinement. Lewis, 518 U.S. at 351-55. Plaintiff

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does not assert that his ad seg placement was unjustified. Nor has he shown an actual injury he

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has suffered by the limitations placed on him there.

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With respect to not having received certain documents from the court, plaintiff has

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nevertheless been able to proceed. For example, when plaintiff informed the court that he had not

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received the document to be copied and the forms to be completed for the court to order service

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of the complaint, the undersigned ordered the Clerk of the Court to re-serve the order at ECF No.

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4, accompanied again with the requisite forms and documents, and granted plaintiff an extension

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of time to complete, copy and submit them. ECF No. 13.

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Although the court finds delays or disruptions of court mail delivery to plaintiff to be

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troubling, in no small part because they lead to delays in the litigation of this case, plaintiff has

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not been precluded from prosecuting this action. Plaintiff was denied a prior request for

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appointment of counsel in an order filed on November 27, 2013. ECF No. 22. In denying that
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request, the court observed that plaintiff pro se had been able to set forth colorable claims. Id. at

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3. Plaintiff pro se has shown his ability to articulate and argue for his claims of an Eighth

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Amendment violation by defendants Drs. Dial and James for deliberate indifference to a serious

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medical condition. Plaintiff has demonstrated to date an ability to address adequately the legal

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issues involved. Palmer v. Valdez, 560 F.3d at 970. Nor does plaintiff make any claim that he

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was unable to fully set forth his opposition to the motions presently pending before this court. He

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does not make a sufficient showing that any likelihood of success on the merits is significantly

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impaired by his continuing to proceed pro se.

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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 exceptional circumstances warranting the appointment of

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counsel at this time.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for the appointment of

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counsel (ECF No. 57) is denied.

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DATED: November 6, 2014

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