Garcia v. California Department of Correction & Rehabilitation, et al
Filing
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ORDER signed by Magistrate Judge Allison Claire on 04/21/15 ORDERING that the 23 Motion to Appoint Counsel is DENIED without prejudice. (Benson, A)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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DANNY R. GARCIA,
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No. 2:13-cv-1952 JAM AC P
Plaintiff,
v.
ORDER
C/O HEATH, et al.,
Defendants.
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights
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action filed pursuant to 42 U.S.C. § 1983. This action proceeds on plaintiff’s First Amended
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Complaint, ECF No. 17, against six defendants, on plaintiff’s First Amendment retaliation claims.
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A Discovery and Scheduling Order issued March 24, 2015, setting a discovery deadline of July
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10, 2015 and a dispositive motion deadline of October 2, 2015. See ECF No. 24.
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Presently pending is plaintiff’s fourth request for appointment of counsel. Plaintiff’s prior
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requests were denied without prejudice. The court then found that plaintiff had not met his
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burden of demonstrating exceptional circumstances warranting appointment of counsel but, in
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each instance, extended time for filing an amended complaint. See ECF Nos. 13, 16. The instant
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request includes 114 pages of exhibits which plaintiff asserts demonstrate the likelihood of
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success on the merits of his claims. Plaintiff states that his claims are complex, that he is indigent
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and not trained in the law, and that he is “still in recovery from cancer (lymphoma-chemo1
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radiation) and. . . still in a depression requiring an increase in medication (Prozac).” ECF No. 23
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at 2. In addition, plaintiff states that another inmate prepared his prior filings but has been
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transferred to another prison and “[t]here is no one here with any legal education to help me.” Id.
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Plaintiff has also filed a “Reply Brief to Defendants’ Answer,” ECF No. 27, without exhibits,
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which is worded more like a notice of summary judgment motion. See Fed. R. Civ. P. 56.
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Plaintiff states therein that he possesses “indisputable evidence” to prove his claims. ECF No. 27
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at 1.
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As plaintiff was previously informed, district courts lack authority to require counsel to
represent indigent prisoners in Section 1983 cases. Mallard v. United States Dist. Court, 490 U.S.
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296, 298 (1989). Only in certain exceptional circumstances will a district court 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 plaintiff’s likelihood
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of success on the merits and the ability of the plaintiff to articulate his claims pro se in light of the
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complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th
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Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). The burden of demonstrating
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exceptional circumstances is on the plaintiff. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir.
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2009). Circumstances common to most prisoners, such as lack of legal education and limited law
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library access, do not establish the requisite exceptional circumstances.
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In the present case, the court again finds that plaintiff has not demonstrated exceptional
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circumstances warranting appointment of counsel at this time. Plaintiff’s physical health appears
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to be stabilized and he is receiving medication for his depression. While plaintiff asserts that his
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claims are complex, he is pursuing the same claim against all six defendants – that defendants
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violated plaintiff’s First Amendment rights by retaliating against him for filing administrative
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grievances. Plaintiff is proceeding on a solid operative complaint and appears to possess
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substantial evidence in support of his claims. The wording of plaintiff’s request for appointment
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of counsel and “reply brief” indicate that he is capable of identifying additional evidence that
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would support his claims, and formulating his discovery requests accordingly.1 Plaintiff also
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appears capable of adequately responding to defendants’ discovery requests to the extent that
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plaintiff possesses the requested evidence or can easily obtain it (e.g., from his central file).
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Plaintiff has already shared substantial evidence with defendants by filing it with the court, and
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defendants should circumscribe their discovery requests accordingly. Thereafter, on or before
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October 2, 2015, plaintiff may move for summary judgment in his favor, with all of his
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supporting evidence; plaintiff must also timely oppose any motion for summary judgment filed by
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defendants. The court will then examine the merits of his plaintiff’s claims and evidence.
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Based on the court’s assessment that plaintiff appears capable of proceeding effectively in
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this action on his own, at this time, his request for appointment of counsel will again be denied.
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Plaintiff is informed that the court will, on its own motion, reconsider the appointment of counsel
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if the case proceeds to trial setting following dispositive motions.
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For these reasons, IT IS HEREBY ORDERED that plaintiff’s motion for appointment of
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counsel, ECF No. 23, is denied without prejudice.
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DATED: April 21, 2015
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Plaintiff’s discovery requests may include the following: (1) requests for admission (yes-or-no
statements of fact) directed to each defendant, see Fed. R. Civ. P. 36; (2) up to twenty-five
interrogatories (questions) directed to each defendant, see Fed. R. Civ. P. 33; and (3) requests for
copies of documents, electronically stored information, or other tangible evidence directed to
each defendant, see Fed. R. Civ. P. 34.
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