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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN ANTHONY MACGREGOR, 12 13 14 15 No. 2:13-cv-1883 JAM AC P Plaintiff, v. ORDER DIAL, et al., Defendants. 16 17 18 19 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 20 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 21 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 22 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 23 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 24 The test for exceptional circumstances requires the court to evaluate the plaintiff’s 25 likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 26 light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th 27 Cir. 2009) (district court did not abuse discretion in declining to appoint counsel); Wilborn v. 28 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1 1 1983). Circumstances common to most prisoners, such as lack of legal education and limited law 2 library access, do not establish exceptional circumstances that would warrant a request for 3 voluntary assistance of counsel. 4 Plaintiff recounts that he was placed in administrative segregation on July 29, 2014. ECF 5 No. 57 at 1. He claims he has had access only to a pen-filler for his writing. Id. at 1, 3. He 6 asserts that the prison law library is only available for three hours on Sundays and can only 7 accommodate six inmates in cages but that there is an average of 16-20 inmates who need to 8 attend. Id. at 1-2. Plaintiff avers that his ad seg placement deprives him of access to a computer, 9 a typewriter, the Local Rules and the Federal Rules of Civil Procedure, as well as other legal 10 materials. Id. at 2-3. Plaintiff also contends that his legal mail is being “obstruct[ed].” Id. at 3. 11 Plaintiff also cites his “failing health” as a result of having Hepatitis C as another factor that 12 hampers his ability to proceed pro se in this case. Id. at 3. Plaintiff believes he needs counsel to 13 handle discovery matters and to present his case to a jury. Id. at 3-4. 14 Plaintiff contends that on two separate occasions, if his mother had not called the court 15 clerk, his case would have been dismissed. ECF No. 61 at 2. He refers to the order, ECF No. 4, 16 filed on September 19, 2013, requiring plaintiff to return forms and copies in order for defendants 17 to be served. Id. He also references defendants’ since-vacated motion to dismiss the first 18 amended complaint, ECF No. 36, filed on March 12, 2014. Id. He maintains that the paging 19 system is insufficient as prisoners often do not know precisely what to ask for and that inmates 20 who send material to the library for copying via paging will not receive the copies for a week. Id. 21 He contends that he can have only one pen-filler a week for writing and when his ran out, he had 22 to wait two days to exchange it, which meant that he when he finished his writing, he had to wait 23 an additional week for copies to be made at the library. Id. at 3-4. 24 Defendants filed a motion to dismiss and a motion for partial summary judgment on May 25 6, 2014. ECF Nos. 45, 46. Pursuant to plaintiff’s request (ECF No. 48), plaintiff’s was granted 26 an extension of time to file his response to the motions. ECF No. 49. On June 17, 2014, plaintiff 27 timely filed an opposition to the motion to dismiss and a separate opposition to the partial 28 summary judgment motion. ECF Nos. 51, 52. On June 26, 2014, defendants filed a reply (ECF 2 1 2 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 3 ECF No. 61, at 4 (citing Lewis v. Casey, 518 U.S. 343 (1996); Bounds v. Smith, 430 U.S. 817 4 (1977)). In doing so, plaintiff demonstrates his ability to support his motion with case authority 5 while proceeding pro se, even under the restrictions of ad seg. He does so as well in his 6 opposition to defendants’ pending motions, which he evidently was able to complete prior to his 7 ad seg placement. 8 In Bounds, the Supreme Court held “that the fundamental constitutional right of access to 9 the courts requires prison authorities to assist inmates in the preparation and filing of meaningful 10 legal papers by providing prisoners with adequate law libraries or adequate assistance from 11 persons trained in the law.” 430 U.S. at 828 (footnote omitted). In Lewis, the High Court made 12 clear that “Bounds did not create an abstract, freestanding right to a law library or legal 13 assistance. . . .” 518 U.S. at 351. Rather, to establish a denial of a right of access-to-the-courts 14 claim, an inmate must show an actual injury; he must show that he has been wholly frustrated by 15 a prison law library or legal assistance program in his efforts to pursue a non-frivolous claim 16 concerning his conviction or conditions of confinement. Lewis, 518 U.S. at 351-55. Plaintiff 17 does not assert that his ad seg placement was unjustified. Nor has he shown an actual injury he 18 has suffered by the limitations placed on him there. 19 With respect to not having received certain documents from the court, plaintiff has 20 nevertheless been able to proceed. For example, when plaintiff informed the court that he had not 21 received the document to be copied and the forms to be completed for the court to order service 22 of the complaint, the undersigned ordered the Clerk of the Court to re-serve the order at ECF No. 23 4, accompanied again with the requisite forms and documents, and granted plaintiff an extension 24 of time to complete, copy and submit them. ECF No. 13. 25 Although the court finds delays or disruptions of court mail delivery to plaintiff to be 26 troubling, in no small part because they lead to delays in the litigation of this case, plaintiff has 27 not been precluded from prosecuting this action. Plaintiff was denied a prior request for 28 appointment of counsel in an order filed on November 27, 2013. ECF No. 22. In denying that 3 1 request, the court observed that plaintiff pro se had been able to set forth colorable claims. Id. at 2 3. Plaintiff pro se has shown his ability to articulate and argue for his claims of an Eighth 3 Amendment violation by defendants Drs. Dial and James for deliberate indifference to a serious 4 medical condition. Plaintiff has demonstrated to date an ability to address adequately the legal 5 issues involved. Palmer v. Valdez, 560 F.3d at 970. Nor does plaintiff make any claim that he 6 was unable to fully set forth his opposition to the motions presently pending before this court. He 7 does not make a sufficient showing that any likelihood of success on the merits is significantly 8 impaired by his continuing to proceed pro se. 9 Having considered the factors under Palmer, the court finds that plaintiff has failed to 10 meet his burden of demonstrating exceptional circumstances warranting the appointment of 11 counsel at this time. 12 Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for the appointment of 13 counsel (ECF No. 57) is denied. 14 DATED: November 6, 2014 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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