(PC)Booth v. Newsom

Filing 46

ORDER signed by Magistrate Judge Allison Claire on 5/31/2024 DENYING 44 Motion for Forms, DENYING 45 Motion to Appoint Counsel and DENYING 45 Motion for Extension of Time.(Kyono, V)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PATRICK J. BOOTH,

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No. 2:20-cv-1562 DJC AC P

Plaintiff,
v.

ORDER

GAVIN NEWSOM, et al.,
Defendants.

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Plaintiff has filed motions requesting subpoenas, the appointment of counsel, and an
extension of time. ECF Nos. 44, 45.
Plaintiff has requested thirty-six blank subpoenas and forms for filing in the United States

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District Court for the Southern District of New York. ECF No. 44. Because plaintiff states he

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requires the subpoenas for a jury trial and it has not yet been determined that this case will

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proceed to trial, the request for subpoena forms will be denied. The request for forms from the

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United States District Court for the Southern District of New York will also be denied. If

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plaintiff wants forms for a specific court, he must make a request to that court.

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Plaintiff has also requested the appointment of counsel and an extension of time for

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counsel to prepare for trial. ECF No. 45. The United States Supreme Court has ruled that district

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

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v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the
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district court may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1).

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Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332,

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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.
Plaintiff requests appointment of counsel on the ground that he has been transferred to the

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Madera County Jail for state habeas proceedings and is being denied access to all of his legal

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property, which was transferred to the jail with him. ECF No. 45. He also asserts that he sent

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legal papers to his wife for safekeeping, but the jail permits only handwritten mail, no copies. Id.

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at 2. While plaintiff asserts that he is being denied access to all of his legal property, it is unclear

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whether he is claiming that he is being denied all access or whether he is being denied access to

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view all of his property at once. He also does not explain whether he has attempted to file

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grievances related to the issue or otherwise attempted to obtain assistance from appropriate jail

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staff to resolve the matter. To the extent plaintiff appears to claim that he is unable to obtain

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copies of necessary documents from his wife due to the jail’s mail policy, there is no indication

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that he has attempted to address this issue with jail staff. Moreover, plaintiff indicates that he

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intends to file the documents in his wife’s possession as discovery, but discovery documents

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should not be filed with the court unless they are being submitted in relation to briefing on a

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motion. If plaintiff intends to send these documents to defendants’ counsel in response to

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discovery requests, he fails to explain why he is unable to have his wife send the documents for

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him. Limitations on properly and mail are not extraordinary circumstances for a prisoner, and

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plaintiff has not shown that appointment of counsel is the only way to resolve the issues. For

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these reasons, plaintiff has not shown the existence of extraordinary circumstances warranting the
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appointment of counsel and the motion will be denied. The request for an extension of time for

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counsel to prepare for trial will also be denied.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for forms (ECF No. 44) is DENIED; and

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2. Plaintiff’s motion for the appointment of counsel and an extension of time (ECF No.

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45) is DENIED.

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DATED: May 31, 2024

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