Clemente v. Parciasepe et al

Filing 89

ORDER signed by Magistrate Judge Kendall J. Newman on 10/25/16 ORDERING that 86 Motion to Appoint Counsel is DENIED without prejudice; Plaintiff is granted permission to write to the following inmates to determine whether each such inmate is wil ling to testify: Larry Rush, B97377, California Health Care Facility, Stockton; Yuntoo Batiste, P18723, California State Prison, Corcoran, and Roberto F. Garcia, F78614, Pleasant Valley State Prison, Coalinga. The Clerk of the Court is directed to serve a copy of this order on the litigation coordinator at Mule Creek State Prison.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARCELINO CLEMENTE,

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No. 2:14-cv-0611 MCE KJN P

Plaintiff,
v.

ORDER

T. PARCIASEPE,
Defendant.

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Plaintiff is a state prisoner, proceeding pro se, in an action brought under 42 U.S.C. §

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1983. This action proceeds on plaintiff’s claim that defendant was deliberately indifferent to

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plaintiff’s safety needs on January 10, 2013, following denial of defendant’s motion for summary

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judgment. Plaintiff requests that the court appoint counsel. Plaintiff now claims that he “doesn’t

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really speak English,” and “has trouble understanding English,” and is receiving mental health

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services at the EOP level of care. (ECF No. 86.) He also claims that that this case will involve

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conflicting testimony and counsel could better present evidence and cross-examine witnesses.

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Plaintiff also claims he does not have access to inmate witnesses because of transfers.

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Defendants oppose plaintiff’s motion on the grounds that this case is not complex, either

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legally or factually, and argues that despite the denial of defendant’s motion for summary

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judgment, plaintiff fails to demonstrate a sufficient showing of likely success on the merits of this

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case. Moreover, defendant contends that plaintiff has repeatedly demonstrated his ability to
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prosecute this action in English based on his pro se filings to date (ECF Nos. 37, 42, 55, 61, 64,

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68, 70, 72 and 88-2 at 116-18), and his deposition testimony (ECF No. 88-2 at 2-112), which was

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conducted in English. Defendants argue that plaintiff failed to support his claim that he needs

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counsel due to his “various mental disabilities,” and plaintiff’s claims that his incarceration, need

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for further documents, limited law library access, and loss of another inmate’s assistance are

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insufficient to demonstrate exceptional circumstances. Plaintiff did not file a reply.

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District courts lack authority to require counsel to represent indigent prisoners in section

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1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional

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circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28

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U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v.

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Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional

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circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as

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well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the

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legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not

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abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional

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circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of

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legal education and limited law library access, do not establish exceptional circumstances that

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warrant a request for voluntary assistance of counsel.

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As noted by defendant, this action is not complex, but rather turns on the testimony of

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witnesses to the events at Mule Creek State Prison on January 10, 2013, after defendant

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Perciasepe placed inmate Villiers in cell 240 with plaintiff.

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The record confirms that plaintiff has been capable of litigating this action in English.

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Plaintiff fails to demonstrate he is unable to prosecute this action due to his mental illness.

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Moreover, the record reflects that plaintiff has obtained numerous inmate witness declarations to

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support his claims; such declarations bear the CDC number for each prospective witness. One

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witness, Cruz Alcantar, now housed at the California Medical Facility, has declared that he is

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willing to testify (ECF No. 80 at 57), so no further affidavit is required to obtain his presence at

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trial. Three of the other inmates: Marco A. Guzman, K19612; Bobby Smith; C54119; and Carl
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Johnson, J9000; are housed at Mule Creek State Prison, where plaintiff is currently housed. Thus,

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plaintiff should be able to obtain affidavits concerning their willingness to testify. Plaintiff’s

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three remaining inmates have transferred to different prisons:

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Larry Rush, B97377, California Health Care Facility, Stockton,

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Yuntoo Batiste, P18723, California State Prison, Corcoran, and

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Roberto F. Garcia, F78614, Pleasant Valley State Prison, Coalinga.

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Because plaintiff needs to determine whether these inmates are willing to testify on his behalf at

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trial, the undersigned orders that plaintiff be allowed to write to such inmates to obtain their

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affidavits.

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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.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for the appointment of counsel (ECF No. 86) is denied without

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prejudice.
2. Plaintiff is granted permission to write to the following inmates to determine whether
each such inmate is willing to testify:

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Larry Rush, B97377, California Health Care Facility, Stockton,

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Yuntoo Batiste, P18723, California State Prison, Corcoran, and

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Roberto F. Garcia, F78614, Pleasant Valley State Prison, Coalinga,

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3. The Clerk of the Court is directed to serve a copy of this order on the litigation

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coordinator at Mule Creek State Prison.

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Dated: October 25, 2016

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