Tufono v. Parker, et al.

Filing 20

ORDER signed by Magistrate Judge Deborah Barnes on 08/30/18 DENYING 17 Motion to Appoint Counsel. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TINO TUFUNO,

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No. 2:16-cv-2448 MCE DB P
Plaintiff,

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v.

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ORDER

L. PARKER, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights

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action under 42 U.S.C. § 1983. Plaintiff claims he was injured when defendants required his

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cellmate to push plaintiff in his wheelchair over a curb causing plaintiff to fall. Presently before

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the court is plaintiff’s second motion to appoint counsel. (ECF No. 17.) The court will issue a

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separate order screening the second amended complaint filed January 29, 2018 (ECF No. 16).

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In support of his motion plaintiff argues counsel should be appointed because his case has

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merit, it involves complex legal and medical issues that will require expert testimony, his injuries

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hinder his ability to research and prepare documents, he lacks knowledge of the law, he has

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difficulty gaining access to the law library, he is an EOP1 inmate, and he required assistance from

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other inmates in preparing his amended complaint. (ECF No. 17.)

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EOP is the abbreviation for Enhanced Outpatient Program, which is a prison mental health care
program designation. Cal. Code Regs. tit. 15 § 3040.1(d); Coleman v. Brown, 28 F. Supp. 3d
1068, 1075 (E.D. Cal. 2014).
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Plaintiff also attached a declaration from an inmate stating the inmate prepared the second

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amended complaint and the motion to appoint counsel. The inmate stated he is not able to assist

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plaintiff because he is pursuing his own cases. He further claims plaintiff is medically impaired

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due to mental illness and his ability to research the law, even without his medical impairments, is

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limited.

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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 district court may request the

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

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1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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In 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. 2000) (district court did not abuse discretion in declining to appoint counsel).

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The burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances

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

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establish exceptional circumstances that would warrant a request for voluntary assistance of

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counsel.

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Here, plaintiff argues the court should appoint counsel because he was only able to

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prepare the second amended complaint and motion to appoint counsel with assistance from other

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inmates. It is unclear at this stage of the proceedings, with only plaintiff’s second amended

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complaint before it, whether plaintiff is likely to succeed on the merits. While plaintiff may

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require the assistance in litigating this action, he has not shown that he will be unable to receive

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help from other inmates moving forward. Up to this point plaintiff has been able to articulate his

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claims with clarity through the assistance of other inmates. (See ECF Nos. 16, 17.)

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Accordingly, the court finds that plaintiff has failed to meet his burden of demonstrating

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exceptional circumstances warranting the appointment of counsel at this time. See Owens v.

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Clark, No. 2:15-cv-0982 TLN KJN P, 2017 WL 6539639 at *1 (E.D. Cal. Dec. 20, 2017)
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(denying EOP inmate’s motion to appoint counsel because he was receiving assistance from other

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inmates and failed to establish a likelihood of success on the merits.). Plaintiff’s motion to

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appoint counsel will be denied without prejudice. However, plaintiff may renew his motion to

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appoint counsel if he is unable to attain assistance in the future.
IT IS HEREBY ORDERED that plaintiff’s motion to appoint counsel (ECF No. 17) is

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denied without prejudice.

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Dated: August 30, 2018

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DLB:12

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DLB:1/Orders/Prisoner Civil-Rights/tufo2448.mta

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