Harris v. Macomber et al

Filing 73

ORDER signed by Magistrate Judge Deborah Barnes on 10/21/19 DENYING 70 Motion to Appoint Counsel and DENYING 71 Motion for the court clerk to issue subpoenas to prison officials. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GRADY HARRIS,

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Plaintiff,

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No. 2:16-cv-0830 TLN DB P

v.

ORDER

JEFF MACOMBER, et al.,

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Defendants.

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Plaintiff has requested the appointment of counsel. (ECF No. 70). This is plaintiff’s fifth

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motion of this kind. (See generally ECF Nos. 9, 14, 20, 29). Plaintiff has also filed a motion for

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the court clerk to issue subpoenas directing prison officials to bring records to a deposition that

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took place on October 18, 2019. (ECF No. 71). For the reasons stated below, the court will deny

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both motions.

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I.

MOTION FOR THE APPOINTMENT OF COUNSEL
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, the court must consider

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plaintiff’s likelihood of success on the merits as well as the ability of the plaintiff to articulate his

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

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965, 970 (9th Cir. 2009) (stating same and concluding district court did not abuse discretion in

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declining to appoint counsel). The burden of demonstrating exceptional circumstances is on the

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plaintiff. Id. Neither of these factors is dispositive and instead must be viewed together. Palmer,

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560 F.3d at 970 (citing Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)), but see

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Richards v. Harper, 864 F.2d 85, 87-88 (9th Cir. 1988) (finding no likelihood of success on merits

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and not addressing “ability to articulate claims pro se” prong in exceptional circumstances

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analysis prior to denying motion for counsel). Circumstances common to most prisoners, such as

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lack of legal education and limited law library access, do not establish exceptional circumstances

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that warrant a request for voluntary assistance of counsel. See, e.g., Wood, 900 F.2d at 1335-36

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(denying appointment of counsel where plaintiff complained he had limited access to law library

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and lacked legal education).

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The fact that this action has not been dismissed outright three years into the proceedings

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and after substantial discovery has been produced arguably suggests plaintiff has adequately

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represented himself. Specifically, he has filed appropriate motions at the proper times and then

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some. Thus, plaintiff clearly understands the proceedings, and he is capable of speaking for

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himself and of gathering and presenting information needed to continue them. For these reasons,

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the court does not find the required exceptional circumstances. Plaintiff’s request for the

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appointment of counsel will therefore be denied.

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II.

MOTION FOR SUBPOENAS TO ISSUE

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Plaintiff’s motion for subpoenas asks the court to issue subpoenas on his behalf that

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require defendants to bring certain documents to an October 18, 2019, deposition and that require

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defendants to provide responses to a list of his questions. For various reasons, this motion is both

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inappropriate and untimely. Consequently, it shall be denied.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for the appointment of counsel, filed October 17, 2019 (ECF No.

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70), is DENIED, and
2. Plaintiff’s motion for the court clerk to issue subpoenas to prison officials, filed

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October 17, 2019 (ECF No. 71), is DENIED.

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Dated: October 21, 2019

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DLB:13
DB/ORDERS/ORDERS.PRISONER.CIVIL RIGHTS/harr0830.31(5).subp.den

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