Davis v. Johnson et al

Filing 20

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 4/18/2018 DENYING plaintiff's 19 request for the appointment of counsel and RECOMMENDING any Fourteenth Amendment claim identified by plaintiff in his 1 complaint be dismissed. Referred to Judge John A. Mendez; Objections to F&R due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DENNIS DAVIS,

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No. 2:17-cv-0544 JAM CKD P
Plaintiff,

v.

ORDER AND

B. JOHNSON, et al.,

FINDINGS AND RECOMMENDATIONS

Defendants.

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Plaintiff is a California prisoner proceeding pro se with an action for violation of civil

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rights under 42 U.S.C. § 1983. On July 25, 2017, the court screened plaintiff’s complaint as the

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court is required to do under 28 U.S.C. § 1915A(a). After screening the complaint, the court

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found “plaintiff’s complaint states claims upon which plaintiff may proceed under the Eighth

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Amendment against defendants Johnson, Graves, LaPastora, Ingram and Gallegos.” Accordingly,

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the court ordered that those defendants (defendants) be served with process and defendants filed

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their answer on October 23, 2017.

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On April 2, 2018, defendants requested the district court judge assigned to this case

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explicitly dismiss a claim plaintiff identifies in his complaint arising under the Fourteenth

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Amendment. In the complaint, plaintiff essentially complains that defendants caused him to be

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housed under conditions presenting a substantial risk of serious harm. The facts alleged amount

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to a claim under the Eighth Amendment. See Farmer v. Brennan, 511 U.S. 825, 828 (1994). This

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being the case, plaintiff’s “claim must be analyzed under the standard appropriate to that

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provision, not the rubric of substantive due process” which falls under the Fourteenth

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Amendment. U.S. v. Lanier, 520 U.S. 259, 272 n. 7 (1997). To the extent plaintiff attempts to

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state a claim under the Equal Protection Clause of the Fourteenth Amendment in his complaint,

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plaintiff fails to allege he has been treated differently from others with whom he is similarly

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situated and that the unequal treatment was the result of intentional or purposeful discrimination.

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Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997).

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For these reasons, the court will recommend that any Fourteenth Amendment claims

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identified by plaintiff in his complaint be explicitly dismissed by the district court judge assigned

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to this case.

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Also, the court notes that plaintiff has requested the appointment of counsel. District

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courts lack authority to require counsel to represent indigent prisoners in section 1983 cases.

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

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court may request an attorney to voluntarily represent such a plaintiff. See 28 U.S.C. §

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1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900

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F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional circumstances”

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exist, the court must consider plaintiff’s likelihood of success on the merits as well as the ability

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of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues

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

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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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Having considered the factors under Palmer, the court finds that plaintiff has failed to

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meet his burden of demonstrating exceptional circumstances warranting the appointment of

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counsel at this time.
Accordingly, IT IS HEREBY ORDERED that plaintiff’s request for the appointment of

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counsel (ECF No. 19) be denied; and

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IT IS HEREBY RECOMMENDED that any Fourteenth Amendment claim identified by
plaintiff in his complaint be dismissed.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be served and filed within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: April 18, 2018

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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1/mp
davi0544.31

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