Moore v. Price

Filing 49

ORDER signed by Magistrate Judge Deborah Barnes on 1/18/2017 DENYING without prejudice plaintiff's 31 renewed motion for appointment of counsel. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KEVIN MOORE,

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No. 2:14-cv-1232 TLN DB
Plaintiff,

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v.

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PARSONS, et al.,

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ORDER

Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief

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under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to

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28 U.S.C. § 636(b)(1)(B) and Local Rule 302. Before the court is plaintiff’s renewed motion to

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appoint counsel due to his medical impairments. (ECF No. 31.) For the reasons outlined below,

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the motion is denied without prejudice.

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On December 9, 2014, then-Magistrate Judge Dale A. Drozd denied without prejudice

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plaintiff’s first motion to appoint counsel. (ECF No. 10.) In that order, the court concluded that

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the lengthy, typewritten complaint stating potentially cognizable claims for relief against three

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defendants demonstrated plaintiff’s ability to clearly articulate his claims on his own behalf. (Id.

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at 6.) The court further opined that plaintiff’s cognizable Eighth Amendment claims appear to be

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relatively straight forward and that plaintiff has not represented that his complaint was prepared

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by someone other than himself and, even if it was, he does not state that the individual who
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assisted him in drafting the complaint is now unavailable to him. (Id.) The court allowed for

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plaintiff to renew the motion at a later stage of the litigation.

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As plaintiff has been informed, the United States Supreme Court has ruled that district

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courts lack authority to require counsel to represent indigent prisoners in § 1983 cases. See

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

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circumstances, the court may request the voluntary assistance of counsel pursuant to 28 U.S.C. §

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1915(e)(1). See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright,

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900 F.2d 1332, 1335-36 (9th Cir. 1990). A finding of “exceptional circumstances” requires an

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evaluation of both the likelihood of success on the merits and the ability of the plaintiff to

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articulate his claims on his own in light of the complexity of the legal issues involved. See

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Terrell, 935 F.2d at 1017. Circumstances common to most prisoners, such as lack of legal

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

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warrant a request for voluntary assistance of counsel.

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Plaintiff’s renewed motion seeks counsel on the same grounds as his previous motion (i.e.,

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due to plaintiff’s several documented medical impairments (see ECF No. 10 at 6)), plus it

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addresses some of the deficiencies pointed out by Judge Drozd in the court’s previous order.

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Despite plaintiff’s contention in the renewed motion though, the court must still deny the request.

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The renewed motion and attached exhibits state that plaintiff’s complaint and other filings

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in this case were prepared with the substantial assistance of three fellow inmates (plaintiff’s

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“jailhouse lawyer inmates”). (ECF No. 31 at 3.) Declarations attached to plaintiff’s motion

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indicate that all three of plaintiff’s jailhouse lawyers are unable to assist him anymore. (Id.)

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Without his jailhouse lawyers, plaintiff contends that he is unable to navigate discovery issues,

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move his case forward, or acquire an expert witness that he believes is necessary for the

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prosecution of his case. (Id.)

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Despite plaintiff’s contentions in his motion, the present circumstances appear to be the

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same as they were when Judge Drozd denied the initial motion to appoint counsel. First, while

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the renewed motion states that plaintiff no longer has any assistance in prison and does not know

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anything about expert witnesses (id.), pending before this court is plaintiff’s motion for the
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appointment of an expert witness (ECF No. 38). The motion is lengthy, typewritten, and

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thoroughly researched with references to both statutory and case law. (ECF No. 38.) In addition

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to the motion for appointment of an expert witness, plaintiff has filed several discovery motions

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(two of which are currently still pending), which are also thoroughly researched. (ECF Nos. 36;

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45; 46.) Thus, the record in this case demonstrates that plaintiff either still does have the benefit

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of jailhouse lawyers or that he was able to navigate the issue sufficiently to prepare such motions.

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Second, more recently, defendants have filed a motion for summary judgment. (ECF No.

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44.) Without the benefit of appointed counsel, plaintiff has managed to submit a thorough,

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typewritten response in opposition to the motion. (ECF No. 47.) Thus, this further evidences that

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plaintiff’s circumstances remain the same as when Judge Drozd denied his motion previously.

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Accordingly, the court must reach the same conclusion now as it did then: the motion should be

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denied without prejudice.

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As a final note, plaintiff’s motion references correspondences that plaintiff had with a

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private attorney, Elizabeth A. Bumer. (ECF No. 31 at 4, 14.) The correspondence indicates that

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Attorney Bumer is “interested” in the case, and so plaintiff requests that the court consider her

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interest in the case in deciding the motion. (Id.) The court declines to do so.

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For the reasons stated above, IT IS HEREBY ORDERED that plaintiff’s renewed motion

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for appointment of counsel (ECF No. 31) is denied without prejudice.

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Dated: January 18, 2017

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TIM-DLB:10
DB / ORDERS / ORDERS.PRISONER.CIVIL RIGHTS / moor1232.mta

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