(PC) Merino v. Gomez et al

Filing 141

ORDER signed by Magistrate Judge Kendall J. Newman on 1/18/2023 DENYING 134 and 136 Motions to Appoint Counsel without prejudice. Plaintiff's concerns regarding overpayment of the filing fee raised in 137 and 138 Letters are DEEMED resolved. (Huang, H)

Case 2:21-cv-00572-DAD-KJN Document 141 Filed 01/18/23 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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FRANCISCO MERINO,

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Plaintiff,

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v.

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GOMEZ, et al.,

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No. 2:21-cv-0572 DAD KJN P

ORDER

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. Pending before the court are plaintiff’s motions for appointment of counsel (ECF Nos.

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134, 136), and plaintiff’s letters addressing overpayment of the filing fee (ECF Nos. 137, 138).

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Motions for Appointment of Counsel

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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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Case 2:21-cv-00572-DAD-KJN Document 141 Filed 01/18/23 Page 2 of 3
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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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Having considered the factors under Palmer, the court finds that plaintiff failed to meet his

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burden of demonstrating exceptional circumstances warranting the appointment of counsel at this

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time.

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Letters re: Overpayment of Filing Fee

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Background

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Plaintiff paid the filing fee in full for the instant action.

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On November 28, 2022, the undersigned ordered the California Department of

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Corrections and Rehabilitation (“CDCR”) to file a status report clarifying their records regarding

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plaintiff’s filing fee owed in the instant action. (ECF No. 124.) On December 12, 2022, CDCR

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informed the court that it mistakenly sent three overpayments to the court toward plaintiff’s filing

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fee: 1) $8 on April 1, 2022; 2) $14 on July 1, 2022; and 3) $6 on November 1, 2022. (ECF No.

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130.)

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On December 16, 2022, the undersigned directed the Financial Office of the Court to
refund to plaintiff the $28 overpaid by CDCR for the filing fee in this action. (ECF No. 131.)
After the December 16, 2022 order was filed, the Financial Office of the Court informed

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the undersigned that CDCR overpaid $36, rather than $28, for plaintiff’s filing fee. (ECF No.

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133.) Accordingly, on December 21, 2022, the undersigned directed the Financial Office of the

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court to refund $36 to plaintiff. (Id.)

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Discussion

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On January 3, 2023, plaintiff filed a letter claiming that CDCR continues to take money

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from his trust account to pay the filing fee in this action. (ECF No. 137.) Attached to this letter is

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a statement from plaintiff’s trust account reflecting that on July 1, 2022, CDCR send the court

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$14 for the filing fee in this action. (Id. at 3.) On January 4, 2023, plaintiff filed another letter

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claiming that CDCR continues to take money from his trust account to pay the filing fee in this
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Case 2:21-cv-00572-DAD-KJN Document 141 Filed 01/18/23 Page 3 of 3
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action. (ECF No. 138.) Attached to this letter is a statement from plaintiff’s trust account

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reflecting that on November 1, 2022, CDCR sent the court $6 for the filing fee in this action. (Id.

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at 4.)

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As discussed above, the court refunded to plaintiff the $14 and $6 overpaid by CDCR on

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July 1, 2022, and November 1, 2022. Accordingly, the concerns raised in plaintiff’s letters, filed

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January 3, 2023, and January 4, 2023, regarding overpayment of the filing fee are deemed

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resolved.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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Plaintiff’s motions for the appointment of counsel (ECF Nos. 134, 136) are denied
without prejudice;

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2. Plaintiff’s concerns regarding overpayment of the filing fee raised in his letters filed

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January 3, 2023, and January 4, 2023 (ECF Nos. 137, 138), are deemed resolved.

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Dated: January 18, 2023

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meri0572.31(8)

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