Young v. Rodriguez et al

Filing 47

ORDER signed by District Judge Kimberly J. Mueller on 6/12/18 ORDERING that upon reconsideration, the order of the magistrate judge filed February 14, 2018 (ECF No. 43 ) is AFFIRMED; Plaintiff's request for appointment of counsel is DENIED.(Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANNY GEROME YOUNG,

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Plaintiff,

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No. 2:15-cv-2604 KJM CKD P

v.

ORDER

RODRIGUEZ, et al.,

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Defendant.

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On February 28, 2018,1 plaintiff filed a timely motion for reconsideration of the

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magistrate judge’s order filed February 14, 2018, vacating defendants’ motion for summary

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judgment and briefly re-opening discovery (ECF No. 43). (ECF No. 45.) Under Federal Rule of

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Civil Procedure 72(a) and Local Rule 303(f), a magistrate judge’s orders shall be upheld unless

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“clearly erroneous or contrary to law.”
The magistrate judge’s February 14, 2018 order vacated the motion for summary

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judgment and re-opened discovery because it became apparent that the vagueness in the order

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screening the first amended complaint had led defendants to believe that only a First Amendment

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claim had been recognized as being cognizable when there were also cognizable Fourteenth

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Amendment and Religious Land Use and Institutionalized Persons Act claims. (ECF No. 43.)

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Since plaintiff is proceeding pro se, he is afforded the benefit of the prison mailbox rule.
Houston v. Lack, 487 U.S. 266, 276 (1988).
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Plaintiff objects to that order on the ground that defendants are represented by counsel and

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therefore have no excuse for not recognizing the additional claims. (ECF No. 45.) However, it is

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the court’s responsibility to notify defendants regarding which claims they must respond to, and

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the order screening the first amended complaint is reasonably interpreted as recognizing only a

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First Amendment claim.2 See 28 U.S.C. § 1915A(a) (requiring the court to screen prisoner

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complaints against government employees); see also ECF No. 10 (summarily stating that the first

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amended complaint stated a cognizable claim and citing the screening of original complaint,

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which recognized only a First Amendment claim). Defendants cannot be faulted for their reliance

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upon the court’s screening order, read reasonably. Therefore the magistrate judge’s ruling was

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clearly erroneous or contrary to law.

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In his motion for reconsideration, plaintiff also requests appointment of counsel. (ECF

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No. 45 at 3.) The United States Supreme Court has ruled that district courts lack authority to

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require counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist.

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Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may

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request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer,

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935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir.

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1990).

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“When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the

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likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims

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pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965,

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970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden

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of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to

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most prisoners, such as lack of legal education and limited law library access, do not establish

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exceptional circumstances that warrant a request for voluntary assistance of counsel.

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The court notes that the subsequent order revoking plaintiff’s in forma pauperis status also
identified only a First Amendment claim when summarizing the claims in the complaint. (ECF
No. 18 at 1.)
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Plaintiff requests appointment of counsel on the ground that the motion for summary

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judgment has been vacated and that his last request was denied with leave to file another request

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if the summary-judgment motion was denied. (ECF No. 45 at 3.) Defendants’ motion has not

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been denied and they will be given an opportunity to file another motion for summary judgment.

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Moreover, the court does not find the issues to be overly complex at this stage; to date, plaintiff

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has been able to successfully articulate his claims without the assistance of counsel. The motion

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for counsel will therefore be denied.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Upon reconsideration, the order of the magistrate judge filed February 14, 2018 (ECF

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No. 43) is affirmed.
2. Plaintiff’s request for appointment of counsel is denied.
DATED: June 12, 2018.

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UNITED STATES DISTRICT JUDGE

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