Jackson v. Galang et al

Filing 56

ORDER signed by Magistrate Judge Craig M. Kellison on 8/18/2017 DENYING plaintiff's 48 motion for sanctions and 55 motion for the appointment of counsel. (Yin, K)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CURTIS VAUGHAN JACKSON, JR., 12 Plaintiff, 13 14 15 16 No. 2:15-CV-1675-JAM-CMK-P vs. ORDER CARMELINO L. GALANG, et al., Defendants. / 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the court are: (1) plaintiff’s motion for sanctions (Doc. 48); 19 and (2) plaintiff’s motion for the appointment of counsel (Doc. 55). 20 In his motion for sanctions, plaintiff argues that the court should impose sanctions 21 on defense counsel for failure to timely file and serve a reply brief. Pursuant to Eastern District 22 of California Local Rules 230(l) and 134(a), defendants’ reply brief was due within seven days of 23 the court’s electronic notice of the filing of plaintiff’s opposition brief. In this case, while 24 plaintiff’s opposition brief was entered on the court’s docket on December 2, 2016, electronic 25 notice of the filing was not sent to defendants until December 5, 2016 (see Doc. 45). Therefore, 26 defendants’ reply brief, filed and served on December 12, 2016, is timely and plaintiff’s motion 1 1 2 for sanctions will be denied. Plaintiff seeks the appointment of counsel. The United States Supreme Court has 3 ruled that district courts lack authority to require counsel to represent indigent prisoners in 4 § 1983 cases. See Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain 5 exceptional circumstances, the court may request the voluntary assistance of counsel pursuant to 6 28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 7 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). A finding of “exceptional 8 circumstances” requires an evaluation of both the likelihood of success on the merits and the 9 ability of the plaintiff to articulate his claims on his own in light of the complexity of the legal 10 issues involved. See Terrell, 935 F.2d at 1017. Neither factor is dispositive and both must be 11 viewed together before reaching a decision. See id. 12 In the present case, the court does not at this time find the required exceptional 13 circumstances. Plaintiff cites the following circumstances justifying the appointment of counsel: 14 (1) confinement; (2) lack of legal experience; (3) lack of funds; (4) limited access to the prison 15 law library; and (5) mental illness. The first four circumstances cited by plaintiff are not 16 exceptional. To the contrary, they are common to nearly every prisoner plaintiff in a § 1983 17 action. As to mental illness, plaintiff has attached documentation to his motion indicated that he 18 was diagnosed with schizoaffective disorder, mood disorder, antisocial personality disorder, and 19 polysubstance dependence in February 2015. Plaintiff has not, however, provided the court with 20 any evidence indicating that these disorders are not being well-treated or that they have adversely 21 affected his ability to litigate this action on his own. To the contrary, a review of plaintiff’s 22 filings in this case reflect that he is able to articulate his claims on his own. Additionally, 23 plaintiff’s claims of deliberate indifference to serious medical needs are not overly complex, 24 either factually or legally. Finally, as to the merits of plaintiff’s claims, the court cannot say at 25 this stage of the proceeds with pending motions to dismiss, whether plaintiff has any particular 26 likelihood of success. Plaintiff’s motion for the appointment of counsel will be denied. 2 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. Plaintiff’s motion for sanctions (Doc. 48) is denied; and 3 2. Plaintiff’s motion for the appointment of counsel (Doc. 55) is denied. 4 5 6 7 DATED: August 18, 2017 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3

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