Baker v. Macomber et al

Filing 64

ORDER signed by Magistrate Judge Allison Claire on 06/13/17 ordering plaintiffs motion for appointment of counsel, 63 , is denied without prejudice. Plaintiffs motion for the courts assistance in locating his legal property, 62 ,is granted: A. Wit hin twenty-one (21) days after the filing date of this order, Mr.Derrek J. Lee, the Deputy Attorney General representing defendant in this action, shall file and serve a statement that reflects the following: 1. Mr. Lees inquiry to the CSP-SAC Litig ation Coordinator (and any other appropriate CDCR official) concerning the location of plaintiffs legal materials relevant to the instant action; and 2. If plaintiff is not in possession of all relevant legal materials, identify the missing materials , their location(s), and the date(s) when the materials will be delivered to plaintiff. B. If plaintiff is not in possession of all relevant legal materials within the twenty-one (21) day period provided herein, Mr. Lee shall file and serve a stateme nt informing the court when such materials are delivered to plaintiff; if necessary, Mr. Lee shall file and serve status reports every fourteen (14) days until such materials are delivered to plaintiff. C. If, after a diligent search, plaintiffs rel evant legal materials cannot be located, Mr. Lee shall promptly inform the court. Plaintiffs motion for extended time, 61 , is granted; plaintiff shall file and serve his opposition to defendants motion for summary judgment within forty-five (45) d ays after he obtains his relevant legal materials, as identified by Mr. Lee in a statement so informing the court. Defendants reply, if any, shall be filed within seven days after plaintiffs opposition is docketed. See Local Rule 230(l). (Plummer, M) Modified on 6/14/2017 (Plummer, M).

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY RAY BAKER,

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Plaintiff,

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v.

No. 2:15-cv-0248 GEB AC P

ORDER

J. MACOMBER, et al.,
Defendants.

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INTRODUCTION
Plaintiff is a state prisoner incarcerated at California State Prison Sacramento (CSP-SAC),

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under the authority of the California Department of Corrections and Rehabilitation (CDCR).

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Plaintiff proceeds pro se with this civil rights action against sole defendant correctional officer J.

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McCowan, on claims of excessive force and deliberate indifference to plaintiff’s serious medical

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needs. ECF No. 10. Discovery has closed. ECF No. 60. Pending for decision after completion

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of the parties’ briefing is defendant’s motion for summary judgment. ECF No. 54.

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Currently pending before the court are three matters filed by plaintiff: (1) a motion for

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extended time to respond to defendant’s motion for summary judgment, ECF No. 61; (2) a motion

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for court order directing CDCR officials to locate and return plaintiff’s missing legal materials,

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ECF No. 62; and (3) a motion for appointment of counsel, ECF No. 63. For the reasons that

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follow, plaintiff’s motions are denied with the exception that defendant’s counsel is directed to

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contact CSP-SAC officials in an attempt to locate plaintiff’s relevant legal materials.

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EXTENSION OF TIME

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Plaintiff requests an additional 45 days to file an opposition to defendant’s motion for

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summary judgment, because he currently lacks access to his “most pertinent” legal materials.

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ECF No. 61 at 2. Plaintiff’s request is granted, subject to the further delay occasioned by this

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order.

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LEGAL MATERIALS
Plaintiff informs the court that he was moved to segregated housing on May 8, 2017, due
to his own safety concerns. Correctional Officers Jones, Enriquez and Presel packed and

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inventoried plaintiff’s property, including several boxes of legal materials, and moved them to

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Receiving & Release (R&R). Plaintiff avers that the boxes were not sealed and his legal

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materials were clearly visible and vulnerable. Plaintiff later signed for possession of 8 boxes,

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which included 7 boxes of legal materials and 1 box of personal property; plaintiff was informed

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that he could retrieve 1 more box of legal materials. However, despite having 4 remaining boxes

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of legal materials, plaintiff avers that none could be located. Plaintiff states, ECF No. 62 at 2-3:

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I’m missing two complete case files, exhibits, supporting
documents, citations, case laws, legal books for Cases 2:15-cv-0248
GEB AC P, Baker v. Macomber et al. [instant case] [and] 2:15-cv09486 PA GJS, Baker v. Soto et al. I’m also missing all of my
disputed factual evidence to defeat defendants’ motion for summary
judgment. Everything I need is in those 4 remaining boxes.
For good cause shown, the court will direct the Deputy Attorney General representing

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defendant McCowan to contact the CSP-SAC Litigation Coordinator to ascertain whether

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plaintiff’s legal materials in this action can be located and provided to plaintiff.

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REQUEST FOR APPOINTMENT OF COUNSEL
Plaintiff has filed his fifth request for appointment of counsel in this case. Plaintiff avers

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that he is “legally blind and is very restricted in his ability to try and effectively litigate the

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pending case.” ECF No. 63 at 1. Plaintiff avers that he qualifies for accommodations under the

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Americans with Disabilities Act, and that his disabilities include vision loss, decreased visual

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acuity, cataracts, macular degeneration, glaucoma, and 20/200 best corrected/uncorrected vision
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in both eyes. Id. at 2. Plaintiff has provided supporting documentation from his medical and

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other prison records, endorsed by a correctional counselor. Id. at 5. Plaintiff further avers that he

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has only an eighth-grade education, is untrained in the law, and thus requires the assistance of

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counsel to further prosecute this action.

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As the court has previously informed plaintiff, the United States Supreme Court has ruled

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that district courts lack authority to require counsel to represent indigent prisoners in § 1983

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

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circumstances, the district court may request the voluntary assistance of counsel pursuant to 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). The test for exceptional circumstances

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requires the court to evaluate the plaintiff’s likelihood of success on the merits and the ability of

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the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved.

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See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d

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952, 954 (9th Cir. 1983). 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. The burden of demonstrating exceptional

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circumstances is on the plaintiff. Palmer v.Valdez, 560 F.3d 965, 970 (9th Cir. 2009).

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For the reasons most recently stated by this court, see ECF Nos. 18, 24, 34, the court again

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finds that plaintiff has failed to meet his burden of demonstrating the requisite exceptional

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circumstances. As the undersigned reasoned in denying plaintiff’s third and fourth requests for

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appointment of counsel, ECF No. 34 at 3-4 (fns. omitted):

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This court must carefully assess these matters in each case because
there are far fewer attorneys willing to undertake such
representation than the number of requests for appointed counsel
filed by prisoners in civil rights cases.
Plaintiff has demonstrated that he has significant mental, emotional
and physical disabilities that impair his ability to pursue litigation
on his own behalf. Nevertheless, many of plaintiff’s personal
challenges are shared by other prisoners and are therefore not
exceptional within the prison context. Moreover, the factual
allegations of this case are succinct and plaintiff’s legal claims –
Eighth Amendment claims for excessive force and deliberate
indifference to plaintiff’s serious medical needs – are
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straightforward. See ECF No. 10 at 6-9. Because ultimate
resolution of this case will depend on the parties’ credibility, the
court is unable to conclude at this juncture that plaintiff has a strong
likelihood of success on the merits of his claims. Should this case
proceed to trial, appointed counsel for plaintiff appears warranted.
However, at this juncture, and in light of the limited number of
available volunteer attorneys, appointment is not clearly warranted.
Matters of credibility cannot be determined on summary judgment.
Should defendant file a motion for summary judgment, plaintiff
should submit all of his evidence in opposition and attempt, to the
best of his ability (and/or with the continuing assistance of other
inmates), to respond to defendant’s arguments in a manner that
conforms with the Local Rules. The court will liberally construe
plaintiff’s filings, as it is required to do. See Thomas v. Ponder,
611 F.3d 1144, 1150 (9th Cir. 2010).

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For these reasons, the court finds that plaintiff has not met his
burden of demonstrating exceptional circumstances warranting the
appointment of counsel at this time.

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For these same reasons, plaintiff’s instant request for appointment of counsel will also be

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denied without prejudice. Should this action proceed to trial, the court will consider a renewed

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request for appointment of counsel.
CONCLUSION

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For the foregoing reasons, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for appointment of counsel, ECF No. 63, is denied without

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prejudice.
2. Plaintiff’s motion for the court’s assistance in locating his legal property, ECF No. 62,
is granted:
A. Within twenty-one (21) days after the filing date of this order, Mr.

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Derrek J. Lee, the Deputy Attorney General representing defendant in this action, shall

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file and serve a statement that reflects the following:

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1. Mr. Lee’s inquiry to the CSP-SAC Litigation Coordinator (and

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any other appropriate CDCR official) concerning the location of plaintiff’s legal

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materials relevant to the instant action; and

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2. If plaintiff is not in possession of all relevant legal materials,

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identify the missing materials, their location(s), and the date(s) when the materials

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will be delivered to plaintiff.
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B. If plaintiff is not in possession of all relevant legal materials within the

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twenty-one (21) day period provided herein, Mr. Lee shall file and serve a statement

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informing the court when such materials are delivered to plaintiff; if necessary, Mr. Lee

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shall file and serve status reports every fourteen (14) days until such materials are

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delivered to plaintiff.

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C. If, after a diligent search, plaintiff’s relevant legal materials cannot be

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located, Mr. Lee shall promptly inform the court.

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3. Plaintiff’s motion for extended time, ECF No. 61, is granted; plaintiff shall file and

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serve his opposition to defendant’s motion for summary judgment within forty-five (45) days

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after he obtains his relevant legal materials, as identified by Mr. Lee in a statement so informing

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the court. Defendant’s reply, if any, shall be filed within seven days after plaintiff’s opposition is

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docketed. See Local Rule 230(l).

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SO ORDERED.

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DATED: June 13, 2017

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