Snowden v. Yule et al

Filing 75

ORDER signed by Magistrate Judge Allison Claire on 12/10/20 DENYING 73 Motion to Appoint Counsel. The Clerk of Court is directed to send plaintiff, together with a copy of this order, a copy of this courts Discovery and Scheduling Order filed April 7, 2020 62 . (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CURTIS SNOWDEN, III,

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No. 2:17-cv-2167 TLN AC P

Plaintiff,

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v.

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M. YULE, et al.,

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ORDER

Defendants.

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Plaintiff is a state prisoner proceeding pro se with this civil rights action alleging

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deliberate indifference to his serious medical needs. Pending is plaintiff’s seventh request for

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appointment of counsel.1 ECF No. 73.
Plaintiff states that his “jailhouse lawyer” is scheduled to be released from the custody of

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the California Department of Corrections and Rehabilitation (CDCR) on December 28, 2020,

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which will leave plaintiff without the assistance he has depended on to pursue this case. Plaintiff

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avers that he is ill-equipped to pursue this case on his own, due to its factual and legal

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complexities and plaintiff’s major depressive and bipolar disorders, which support his placement

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in CDCR’s Enhanced Outpatient Program (EOP). Plaintiff emphasizes that his Eighth

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Amendment claim requires presenting proof of defendants’ mental state to a jury, a task which he

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is unable to undertake.

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Plaintiff’s prior requests are noted on the docket at ECF Nos. 12, 18-20, 55, 64 and 68. The
court’s orders in response are set forth at ECF Nos. 26, 56, 65 and 69.
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As this court has previously informed plaintiff, there is no constitutional right of legal

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representation for indigent prisoners in Section 1983 cases. See Mallard v. United States Dist.

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Court, 490 U.S. 296, 298 (1989). Under 28 U.S.C. § 1915(e)(1), a district court may request the

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voluntary assistance of an available attorney to represent an indigent prisoner in a civil rights case

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upon demonstration of “exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th

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

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“exceptional circumstances” includes consideration of a plaintiff’s likelihood of success on the

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merits of his claims, as well as the plaintiff’s ability to articulate his claims pro se in light of the

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complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).

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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 supporting appointment of counsel. Id.

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The court again finds that plaintiff has not met his burden of demonstrating exceptional

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circumstances at the present time. Although plaintiff may no longer have the assistance of

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another prisoner to pursue this case, the next hurdle he faces – opposing a motion for summary

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judgment – is manageable for most pro se plaintiffs. Should this case proceed to trial, the court

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will, upon request, consider anew whether appointment of counsel is warranted.

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Plaintiff is informed that, should defendants file a motion for summary judgment, he must

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file an opposition that directs the court to evidence that contradicts the evidence relied on by

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defendants and/or demonstrates that the matter remains disputed and must therefore proceed to

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trial. Plaintiff is informed that “[i]n evaluating the evidence to determine whether there is a

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genuine issue of fact” presented by a motion for summary judgment, this court will “draw all

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reasonable inferences supported by the evidence in favor of the non-moving party,” that is, in

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plaintiff’s favor. Walls v. Central Costa County Transit Authority, 653 F.3d 963, 966 (9th Cir.

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2011) (per curiam) (citation omitted).

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Because discovery closed in this case on December 4, 2020, all relevant evidence has

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already been produced. Defendants must file and serve any motion for summary judgment on or

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before March 15, 2021. Should plaintiff require additional time to prepare, file and serve his
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opposition, he must make a timely request. As further guidance and in response to plaintiff’s

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separate request, ECF No. 74, the court will direct the Clerk of Court to re-serve on plaintiff a

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copy of the Discovery and Scheduling Order filed April 7, 2020.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for appointment of counsel, ECF No. 73, is DENIED without

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prejudice; and
2. The Clerk of Court is directed to send plaintiff, together with a copy of this order, a
copy of this court’s Discovery and Scheduling Order filed April 7, 2020 (ECF No. 62).

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IT IS SO ORDERED.

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DATED: December 10, 2020

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