Joseph v. Parciasepe, et al.
Filing
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ORDER signed by Magistrate Judge Allison Claire on 1/29/16 granting 28 Motion to Proceed IFP. Plaintiff's motion for reconsideration is construed as a renewed motion for counsel 29 and is denied without prejudice. (Plummer, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ALONZO JAMES JOSEPH,
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Plaintiff,
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No. 2:14-cv-0414 GEB AC P
v.
ORDER
T. PARCIASEPE, et al.,
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Defendants.
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On December 23, 2015, the Clerk of the Court filed plaintiff’s application to proceed in
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forma pauperis (ECF No. 28) and motion for reconsideration of the magistrate judge’s order filed
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December 7, 2015, denying appointment of counsel (ECF No. 29). Plaintiff’s motion for counsel
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was denied in part because he had not yet established that he was indigent. ECF No. 27 at 2-3. In
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light of plaintiff’s application to proceed in forma pauperis, the court will construe plaintiff’s
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motion for reconsideration as a renewed motion for counsel.
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Plaintiff’s application to proceed in forma pauperis makes the showing required by 28
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U.S.C. § 1915(a). ECF No. 28. Accordingly, the request to proceed in forma pauperis will be
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granted. However, while plaintiff has now established that he is indigent, his renewed motion for
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counsel will be denied because he still has not shown that the exceptional circumstances
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necessary for appointing counsel in § 1983 cases exists at this time.
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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 court may request the voluntary
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assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017
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(9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). The test for
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exceptional circumstances requires the court to evaluate the plaintiff’s likelihood of success on
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the merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity
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of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009); 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). Plaintiff states that he requires appointment of counsel to assist him in conducting
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discovery because he will be unable to respond to certain production requests because he is being
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told the documents are confidential or privileged and because he requires an attorney to produce
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witnesses and obtain their affidavits. ECF No. 29 at 1-2.
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Plaintiff has already been advised that he is only required to produce items that are in his
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possession, custody, or control. ECF No. 27 at 2. If plaintiff does not have access to certain
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documents, he is not required to produce them in response to defendant’s discovery requests.
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Moreover, plaintiff has been afforded an opportunity to review and make copies of the non-
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confidential portions of his central file. ECF No. 30. To the extent there are still documents that
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plaintiff has been unable to copy, he does not identify any specific documents or types of
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documents in his motion for counsel. ECF No. 29.
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Additionally, after defendant notified the court that plaintiff had been given an
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opportunity to review and make copies of his central file (ECF No. 30), plaintiff filed a response
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that indicated there were still documents to which he was being denied access (ECF No. 31).
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However, the only specific documents identified by plaintiff are records of cell searches, and the
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documentation he provides show not that he is being denied access, but that the records do not
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exist because they are not archived that far back. ECF No. 31 at 5.
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With respect to plaintiff’s claim that he requires an attorney to produce witnesses and their
affidavits, his response to defendant’s notice demonstrates that he is already capable of
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identifying the individuals that he would like to call as witnesses. ECF No. 31 at 7. If these
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individuals have not already signed affidavits, plaintiff is not required to create and produce
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affidavits in order to respond to defendant’s discovery requests. To the extent plaintiff may
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require affidavits to support a motion for summary judgment, he has not established that any of
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his proposed witnesses would testify to matters about which he lacks personal knowledge and
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therefore could not testify about himself. At the summary judgment stage, accounts by other
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individuals that merely duplicate plaintiff’s own testimony regarding things he personally heard
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or saw are unnecessary because they serve only to bolster credibility, which is not properly
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considered on summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)
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(credibility determinations are the function of the jury, not of a judge on a motion for summary
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judgment). Finally, plaintiff’s argument that he requires an attorney to produce witnesses at trial
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is premature because it is not yet clear that this case will proceed to trial.
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Although plaintiff has established that he is indigent, he has not established that
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exceptional circumstances exist in this case and his renewed request for appointment of counsel is
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denied without prejudice.
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Summary
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Plaintiff’s motion to proceed in forma pauperis is granted.
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Plaintiff’s renewed motion for appointment of counsel is denied because plaintiff does not
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have to produce documents that he cannot access or that do not already exist and he is already
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able to identify the witnesses that he wants to testify. If plaintiff wants counsel to help him get
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affidavits to support or oppose a motion for summary judgment, he will need to explain what
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information he believes the witnesses can testify to that he cannot. For example, if one of the
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witnesses told plaintiff they saw or heard something that plaintiff did not also see or hear for
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himself. Because it has not yet been decided whether this case will go to trial, it is too early for
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plaintiff to need an attorney to subpoena witnesses.
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Accordingly, IT IS HEREBY ORDERED that:
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1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 28) is granted.
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2. Plaintiff’s motion for reconsideration is construed as a renewed motion for counsel
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(ECF No. 29) and is denied without prejudice.
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DATED: January 29, 2016
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