Pimentel v. Beard et al

Filing 61

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 1/10/2018 DENYING plaintiff's 59 motion for the appointment of counsel and RECOMMENDING plaintiff's 60 motion to stay be denied. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days. (Yin, K)

Download PDF
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 RICARDO PIMENTEL, 11 12 13 14 No. 2:14-cv-1192 MCE DB P Plaintiff, v. ORDER AND FINDINGS AND RECOMMENDATIONS BRETT MATHEW FLEMING, Defendant. 15 16 Plaintiff, a state prisoner proceeding pro se with a civil rights action, has requested 17 appointment of counsel as he is incarcerated and has limited knowledge of the law. Plaintiff also 18 requests a stay of these proceedings pending a decision on his motion for appointment of counsel. 19 (ECF Nos. 59, 60.) 20 The United States Supreme Court has ruled that district courts lack authority to require 21 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 22 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 23 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 24 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 25 The test for exceptional circumstances requires the court to evaluate the plaintiff’s 26 likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 27 light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 28 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 1 1 common to most prisoners, such as lack of legal education and limited law library access, do not 2 establish exceptional circumstances that would warrant a request for voluntary assistance of 3 counsel. Here, plaintiff seeks appointment of counsel based on the difficulties he faces in 4 conducting legal research because he is incarcerated and his limited knowledge of the law. These 5 factors do not amount to the required exceptional circumstances. 6 Because the court denies plaintiff’s motion for the appointment of counsel, the court will 7 recommend plaintiff’s motion to stay this case be denied. However, the court is concerned about 8 one statement plaintiff makes. In his motion for a stay, plaintiff states that a letter he wrote to an 9 attorney and gave to a correctional officer during mail pick up was never in fact mailed. If 10 plaintiff continues to experience interference with his legal mail involving this case, he may 11 contact the court for assistance. Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for the appointment of 12 13 counsel (ECF No. 59) is denied; and IT IS HEREBY RECOMMENDED that plaintiff’s motion to stay (ECF No. 60) be 14 15 16 denied. These findings and recommendations will be submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 18 after being served with these findings and recommendations, any party may file written 19 objections with the court and serve a copy on all parties. The document should be captioned 20 “Objections to Magistrate Judge's Findings and Recommendations.” Any response to the 21 objections shall be filed and served within seven days after service of the objections. The parties 22 are advised that failure to file objections within the specified time may result in waiver of the 23 right to appeal the district court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 24 Dated: January 10, 2018 25 26 DLB:9 DB/prisoner-civil rights/pime1192.31 27 28 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?