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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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CURTIS VAUGHAN JACKSON, JR.,

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Plaintiff,

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No. 2:15-CV-1675-JAM-CMK-P

vs.

ORDER

CARMELINO L. GALANG, et al.,
Defendants.
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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Pending before the court are: (1) plaintiff’s motion for sanctions (Doc. 48);

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and (2) plaintiff’s motion for the appointment of counsel (Doc. 55).

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In his motion for sanctions, plaintiff argues that the court should impose sanctions

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on defense counsel for failure to timely file and serve a reply brief. Pursuant to Eastern District

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of California Local Rules 230(l) and 134(a), defendants’ reply brief was due within seven days of

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the court’s electronic notice of the filing of plaintiff’s opposition brief. In this case, while

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plaintiff’s opposition brief was entered on the court’s docket on December 2, 2016, electronic

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notice of the filing was not sent to defendants until December 5, 2016 (see Doc. 45). Therefore,

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defendants’ reply brief, filed and served on December 12, 2016, is timely and plaintiff’s motion
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for sanctions will be denied.
Plaintiff seeks the appointment of counsel. The United States Supreme Court has

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

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

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exceptional circumstances, the court may request the voluntary assistance of counsel pursuant to

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28 U.S.C. § 1915(e)(1). See 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). A finding of “exceptional

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circumstances” requires an evaluation of both the likelihood of success on the merits and the

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ability of the plaintiff to articulate his claims on his own in light of the complexity of the legal

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issues involved. See Terrell, 935 F.2d at 1017. Neither factor is dispositive and both must be

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viewed together before reaching a decision. See id.

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In the present case, the court does not at this time find the required exceptional

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circumstances. Plaintiff cites the following circumstances justifying the appointment of counsel:

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(1) confinement; (2) lack of legal experience; (3) lack of funds; (4) limited access to the prison

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law library; and (5) mental illness. The first four circumstances cited by plaintiff are not

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exceptional. To the contrary, they are common to nearly every prisoner plaintiff in a § 1983

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action. As to mental illness, plaintiff has attached documentation to his motion indicated that he

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was diagnosed with schizoaffective disorder, mood disorder, antisocial personality disorder, and

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polysubstance dependence in February 2015. Plaintiff has not, however, provided the court with

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any evidence indicating that these disorders are not being well-treated or that they have adversely

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affected his ability to litigate this action on his own. To the contrary, a review of plaintiff’s

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filings in this case reflect that he is able to articulate his claims on his own. Additionally,

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plaintiff’s claims of deliberate indifference to serious medical needs are not overly complex,

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either factually or legally. Finally, as to the merits of plaintiff’s claims, the court cannot say at

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this stage of the proceeds with pending motions to dismiss, whether plaintiff has any particular

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likelihood of success. Plaintiff’s motion for the appointment of counsel will be denied.
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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s motion for sanctions (Doc. 48) is denied; and

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Plaintiff’s motion for the appointment of counsel (Doc. 55) is denied.

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DATED: August 18, 2017
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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