(PC) Foust v. Kuku-Ojo ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CARL FOUST, No. 2:16-cv-2731 WBS AC P 12 Plaintiff, 13 v. ORDER 14 O. KUKU-OJO, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se with a civil rights action, has filed another 18 request for appointment of counsel. ECF No. 108. 19 The United States Supreme Court has ruled that district courts lack authority to require 20 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 21 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 22 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 23 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 24 “When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the 25 likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims 26 pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965, 27 970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden 28 of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to 1 most prisoners, such as lack of legal education and limited law library access, do not establish 2 exceptional circumstances that would warrant a request for voluntary assistance of counsel. 3 Plaintiff requests counsel on the grounds that he is disabled and cannot read or write, and 4 has attached close to two hundred pages of medical records, grievances, and court filings. ECF 5 Nos. 109, 110. In denying his previous motions for counsel, the court has advised plaintiff that 6 his claim of disability, by itself, does not warrant the appointment of counsel and that he must 7 provide medical documentation supporting his claims that his disability makes him unable to 8 pursue this case without assistance. ECF Nos. 49, 52, 56, 99, 103, 107. However, while plaintiff 9 has provided medical documentation of disability, the records do not support his contention that 10 his disability requires appointment of counsel. 11 The records provided show that plaintiff suffers from pain and mobility issues and reads at 12 less than a second-grade level. While these conditions may make pursing a lawsuit more 13 difficult, there is no indication that they leave plaintiff unable to pursue this case without an 14 attorney, particularly since he appears to be getting assistance with reading and writing. 15 Furthermore, plaintiff has not demonstrated that he is likely to succeed in this action, and the 16 current record does not support the finding of such a likelihood. Finally, plaintiff is reminded that 17 the only task currently before him is to respond to defendant’s motion for sanctions, which his 18 previous filings demonstrate he should be able to respond to without the assistance of counsel. 19 The response to the motion is currently due January 2, 2020. However, the court will grant 20 plaintiff an extension of time to file his response. Plaintiff is advised that he should focus on 21 responding to defendant’s motion rather than continuing to file nearly identical motions for 22 appointment of counsel and that if he does not respond to the motion for sanctions it will likely be 23 recommended that this action be dismissed. 24 Accordingly, IT IS HEREBY ORDERED that: 25 1. Plaintiff’s motion for the appointment of counsel (ECF No. 108) is denied. 26 //// 27 //// 28 //// 1 2. Plaintiff shall have an additional twenty-one days, up to January 23, 2020, to file a 2 || response to defendant’s motion for sanctions. Failure to respond to the motion will likely result 3 || ina recommendation that this action be dismissed. 4 | DATED: December 30, 2019 ~ 5 Hthren— Lhar—e_ ALLISON CLAIRE 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28