Jenkins v. Abdur-Rahman et al

Filing 16

ORDER signed by Magistrate Judge Craig M. Kellison on 06/05/17 ordering plaintiff's motion for the appointment of counsel 15 is denied. Plaintiff's motion relating to evidence 14 is denied. (Plummer, M)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT LEE JENKINS, JR., 12 13 No. 2:13-CV-2325-CMK-P Plaintiff, vs. ORDER 14 ABDUR-RAHMAN, et al., 15 Defendants. 16 17 / Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the court are (1) plaintiff’s motion for the appointment of 19 counsel (Doc. 15) and (2) plaintiff’s motion regarding discovery (Doc. 14). 20 The United States Supreme Court has ruled that district courts lack authority to 21 require counsel to represent indigent prisoners in § 1983 cases. See Mallard v. United States 22 Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may 23 request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v. 24 Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 25 (9th Cir. 1990). A finding of “exceptional circumstances” requires an evaluation of both the 26 likelihood of success on the merits and the ability of the plaintiff to articulate his claims on his 1 1 own in light of the complexity of the legal issues involved. See Terrell, 935 F.2d at 1017. 2 Neither factor is dispositive and both must be viewed together before reaching a decision. See 3 id. 4 In the present case, the court does not at this time find the required exceptional 5 circumstances. According to plaintiff, appointment of counsel is appropriate in this case 6 because: (1) he is unable to articulate his claims; (2) his claims are complex and involve complex 7 factual issues; (3) the parties dispute the facts; and (4) he is indigent. First, the court does not 8 agree with plaintiff that he is unable to articulate his claims. To the contrary, the record 9 developed thus far demonstrates that plaintiff is capable of articulating his claims to the court. 10 Second, the court does not find that plaintiff’s claims are complex or involve complex factual 11 issues. Again to the contrary, plaintiff’s medical care claims are quite commonplace and 12 straightforward. Third, plaintiff’s lack of funds and disputes as to the facts are typical and do not 13 present exceptional circumstances. Finally, the court cannot say at this stage of the proceedings 14 before defendants have even been served whether plaintiff has any particular likelihood of 15 success on the merits. For all of these reasons, plaintiff’s motion for the appointment of counsel 16 will be denied. 17 Plaintiff has filed a motion appearing to relate to evidence entitled “Motion to 18 Amend Evidence of Correctional Officer Misconduct of a Culture of Racism and the Frequent 19 Use of Excessive Force Especially Against Black Inmates at High Desert State Prison.” Attached 20 as Exhibit A to the motion is a news article. Plaintiff asks the court to “amend this new evidence 21 to his claims.” Plaintiff’s motion will be denied as premature because the case is not yet at issue. 22 Once the case is at issue with the filing of an answer to the complaint and once discovery is 23 completed, evidence may then be presented in the context of dispositive motions and/or trial. 24 /// 25 /// 26 /// 2 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. Plaintiff’s motion for the appointment of counsel (Doc. 15) is denied; and 3 2. Plaintiff’s motion relating to evidence (Doc. 14) is denied. 4 5 6 7 DATED: June 5, 2017 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3

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