Mitchell v. Duffy et al

Filing 23

ORDER signed by Magistrate Judge Allison Claire on 7/9/2018 DENYING 22 Motion for Appointment of Counsel. Plaintiff granted 30 days from the service of this order in which to file an amended complaint. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PAUL MITCHELL,

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No. 2:16-cv-0703 JAM AC P

Plaintiff,
v.

ORDER

BRIAN DUFFY, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42

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U.S.C. § 1983. By order filed January 11, 2018, the complaint was dismissed and plaintiff was

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given thirty days to file an amended complaint. ECF No. 12. He then requested an extension of

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time (ECF No. 15) and was granted an additional thirty days to file an amended complaint (ECF

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No. 16). A third party then submitted a request for appointment of counsel on plaintiff’s behalf

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(ECF No. 17), and shortly after that plaintiff sent a notice advising the court that his legal

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paperwork was disorganized due to a housing change (ECF No. 18). The court denied plaintiff’s

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request for appointment of counsel and, in response to the claims about his paperwork, granted

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another thirty days to file an amended complaint. ECF No. 19. Plaintiff now requests that the

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court reconsider its previous denial, which the undersigned construes as a renewed motion for

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counsel. ECF No. 22. Plaintiff also informed the court that he has again been moved to a new

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facility and has not yet received his legal paperwork. Id.
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The United States Supreme Court has ruled that district courts lack authority to require

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counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490

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U.S. 296, 298 (1989). In certain exceptional circumstances, the court may request the voluntary

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assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017

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(9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 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 would warrant a request for voluntary assistance of counsel.

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Plaintiff requests that the court reconsider its previous denial of appointment of counsel.

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As stated in the last order, plaintiff’s recent filings demonstrate an ability to articulate his claims

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without assistance of counsel. See ECF Nos. 15, 18, 20-22. If plaintiff’s request for counsel is

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based upon medical need, he will need to provide medical records that support his claim that his

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conditions prevent him from pursuing this action without assistance. Accordingly, in the present

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case, the request for appointment of counsel will be denied because the court does not find the

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required exceptional circumstances.

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Plaintiff also indicates that he has not yet received his legal paperwork since arriving at

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the California Health Care Facility, Stockton. ECF No. 22. The court will grant plaintiff another

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thirty days in which to file his amended complaint. Plaintiff is reminded that in amending the

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complaint, he is not required to make legal arguments, and instead should simply explain to the

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court which individuals he wants to name as defendants and what each person did or did not do

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that he believes violated his rights.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for the appointment of counsel (ECF No. 22) is denied without

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prejudice;
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2. Plaintiff is granted thirty days from the service of this order in which to file an

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amended complaint. Failure to file an amended complaint will result in a recommendation that

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this action be dismissed for failure to prosecute.

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DATED: July 9, 2018

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