Garces v. Pickett et al

Filing 207

ORDER signed by Magistrate Judge Allison Claire on 2/27/23 that plaintiff's 205 motion for appointment of counsel and an extension of time is GRANTED in part. Plaintiff shall have 30 days from the service of this order to file a reply in support of his motion for summary judgment and a response to defendants' cross-motion for summary judgment. The motion is otherwise DENIED. (Kastilahn, A)

Case 2:17-cv-00319-DAD-AC Document 207 Filed 02/27/23 Page 1 of 3
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LUIS MANUEL GARCES,

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Plaintiff,

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v.

No. 2:17-cv-0319 DAD AC P

ORDER

J. PICKETT, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed a motion seeking an extension of an

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unspecified deadline until plaintiff is appointed counsel. ECF No. 205. In support of his request,

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plaintiff alleges that he has been subject to various forms of retaliation and harassment by non-

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defendants throughout 2021 and 2022, that he is currently separated from his legal paperwork,

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and that he has been deemed incompetent as part of an effort to keep him separated from his

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paperwork and justify the harassment. Id.

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Assuming that plaintiff is seeking an extension of time to reply in support of his motion

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for summary judgment and respond to defendants’ cross-motion, the motion will be granted to the

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extent plaintiff will be granted an extension of time to file his reply and response. The request for

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appointment of counsel, however, will be denied.

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The United States Supreme Court has ruled that district courts lack authority to require
counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490
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Case 2:17-cv-00319-DAD-AC Document 207 Filed 02/27/23 Page 2 of 3
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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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“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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Aside from his current mental health designation and inability to access legal paperwork,

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the conditions identified by plaintiff appear to be discrete incidents of past harassment. While the

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court does not condone the kind of conduct plaintiff alleges, these past incidents1 do not

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demonstrate current extraordinary circumstances warranting the appointment of counsel. With

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respect to plaintiff’s separation from his legal paperwork, there is no indication that an extension

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of time is insufficient to allow him time to obtain access to his files. Should plaintiff continue to

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be refused access to his files, he may file another motion addressing the issue, and any such

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motion should be accompanied by documentation showing plaintiff’s attempts to gain access to

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his paperwork and any responses received. Finally, plaintiff’s claim that he has been declared

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incompetent,2 though he appears to disagree with this determination, does not, by itself, establish

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extraordinary circumstances. If plaintiff chooses to file another motion for appointment of

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counsel based upon his mental health conditions, he should identify what conditions he suffers

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from, explain how his conditions prevent him from proceeding without assistance, and provide

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medical documentation supporting his claimed impairments. For these reasons, plaintiff has not

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shown the existence of extraordinary circumstances warranting the appointment of counsel.

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Plaintiff is free to pursue a separate lawsuit regarding these alleged incidents if he desires,
though the court takes no position on whether such a lawsuit would be successful.
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It appears he may be alleging that he is subject to an involuntary medication order.
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Case 2:17-cv-00319-DAD-AC Document 207 Filed 02/27/23 Page 3 of 3
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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for appointment of

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counsel and an extension of time (ECF No. 205) is GRANTED in part. Plaintiff shall have thirty

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days from the service of this order to file a reply in support of his motion for summary judgment

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and a response to defendants’ cross-motion for summary judgment. The motion is otherwise

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DENIED.

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DATED: February 27, 2023

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