Price v. C&PR et al

Filing 44

ORDER signed by Magistrate Judge Kendall J. Newman on 3/20/2018 DENYING without prejudice plaintiff's 42 motion for the appointment of counsel and for the production of documents. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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IMMANUEL CHRISTIAN PRICE,

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No. 2:17-cv-0382 TLN KJN P

Plaintiff,
v.

ORDER

C&PR, et al.,
Defendants.

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Plaintiff is a state prisoner, proceeding pro se, in an action brought under 42 U.S.C.

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§ 1983. Plaintiff requests that the court appoint counsel, and allow him to obtain certain

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documents. Plaintiff argues that the issues in this case are complex, and that he “is not in a

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position to present several documents . . . essential to this court’s fair consideration.” (ECF No.

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42 at 2.) Plaintiff seeks to obtain the federal receiver’s exclusion policy as modified and adopted

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by the CDCR in June of 2013, and several declarations accepted by the Plata court from cocci

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experts. Plaintiff argues such evidence is compelling and supports his claims in this action. See

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Plata v. Brown, 2013 WL 3200587 (N.D. Cal. June 24, 2013).)

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District courts lack authority to require counsel to represent indigent prisoners in section

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1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional

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circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28

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U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v.
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Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional

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circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as

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well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the

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legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not

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abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional

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circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of

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

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warrant a request for voluntary assistance of counsel.

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On February 26, 2018, the undersigned recommended that defendants’ motion for

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judgment on the pleadings be granted on grounds of qualified immunity. Thus, the recommended

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dismissal of this action is based on the unsettled state of the law, not a failure of proof or evidence

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to support plaintiff’s position. (ECF No. 39 at 8.) The undersigned is well aware of the serious

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nature of Valley Fever, or cocci, and the risk it poses to individuals, particularly those with

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compromised immune systems. Nevertheless, having considered the factors under Palmer,

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including whether or not plaintiff is likely to succeed on the merits, the court finds that plaintiff

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has failed to meet his burden of demonstrating exceptional circumstances warranting the

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appointment of counsel at this time. Thus, plaintiff’s motion and his request for production of

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documents is denied.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for the appointment of

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counsel and for the production of documents (ECF No. 42) is denied without prejudice.

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Dated: March 20, 2018

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pric0382.31+

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