(PC) Murphy v. Clark ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN PAUL JONES MURPHY, Case No. 1:19-cv-00206-DAD-EPG (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION 13 FOR APPOINTMENT OF PRO BONO v. COUNSEL, MOTION TO PROVIDE 14 PLAINTIFF WITH OUTSIDE R. RODRIGUEZ, et al., PSYCHOLOGIST, MOTION FOR A COURT APPOINTED INDEPENDENT 15 INVESTIGATOR, AND REQUEST FOR Defendants. COURT TO SERVE REPLY 16 ORDER GRANTING PLAINTIFF’S REQUEST 17 FOR ORIGINAL COPY OF REPLY AND DIRECTING CLERK TO SEND PLAINTIFF 18 THE ORIGINAL COPY OF HIS REPLY TO DEFENDANTS’ ANSWER (ECF NO. 47) 19 20 (ECF NO. 47) 21 22 I. PLAINTIFF’S REQUESTS 23 John Paul Jones Murphy (“Plaintiff”) is a state prisoner proceeding pro se and in forma 24 pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. 25 On July 6, 2020, Plaintiff filed a reply to Defendants’ answer, which is over 230 pages.1 26 1 Plaintiff should not include motions as attachments to other filings. The Court will not comb through 27 Plaintiff’s filings in order to attempt to find his requests for relief. Unrelated motions should be filed separately and should clearly request the relief Plaintiff is seeking 28 1 (ECF No. 47). Included with Plaintiff’s reply was, among other things, a motion for appointment 2 of pro bono counsel (ECF No. 47, p. 14), a motion for the Court to provide Plaintiff with an 3 outside psychologist (id.), a motion for the Court to appoint an independent investigator (id. at 4 16), and a request for the Court to serve Plaintiff’s reply and return the original copy to him (ECF 5 No. 47-1, p. 99). 6 Plaintiff asks the Court to serve his reply and return the original documents to him 7 because he is unable to make copies due to restrictions placed upon him because of the COVID- 8 19 pandemic. 9 Plaintiff asks to be provided with an outside psychologist because he cannot talk to the 10 “state sponsored” psychologist due to their closeness with California Department of Corrections 11 and Rehabilitation (“CDCR”) officers. This closeness makes it impossible for Plaintiff to 12 disclose the emotional trauma being suffered due to the fear that it will be disclosed to 13 Defendants or other CDCR employees. 14 Plaintiff asks for appointment of an independent investigator to collect photographic 15 evidence that will show that Defendants are making false claims to the Court. 16 Plaintiff asks for appointment of pro bono counsel because he does not want to have to 17 suffer the trauma of having to relive the events just to answer Defendants’ accusations. 18 II. ANALYSIS 19 As to Plaintiff’s request for the Court to serve his reply, it will be denied as moot because 20 Defendants received an electronic copy from the Court when the reply was docketed. The Court 21 will order that no further service of the reply is necessary. 22 As to Plaintiff’s request that the Court return the original copy of his reply to him, the 23 Court finds good cause to grant this request and will direct the Clerk of Court to return the 24 original copy to Plaintiff. 25 As to Plaintiff’s request that the Court provide Plaintiff with an outside psychologist, it 26 will be denied. Plaintiff cited to no legal authority allowing the Court to provide a psychologist 27 to Plaintiff in a situation such as this, and the Court is aware of none. 28 As to Plaintiff’s motion for appointment of an investigator, it will be denied. Plaintiff 1 cited to no legal authority requiring the Court to appoint an investigator, and the Court is aware of 2 none. Additionally, the Court does not see a need for an investigator to be appointed at this time. 3 As to Plaintiff’s request for appointment of pro bono counsel, Plaintiff does not have a 4 constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 5 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952 (9th Cir. 1998), and the Court 6 cannot require an attorney to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. 7 United States District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). 8 However, in certain exceptional circumstances the Court may request the voluntary assistance of 9 counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 10 Without a reasonable method of securing and compensating counsel, the Court will seek 11 volunteer counsel only in the most serious and exceptional cases. In determining whether 12 “exceptional circumstances exist, a district court must evaluate both the likelihood of success of 13 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 14 complexity of the legal issues involved.” Id. (citation and internal quotation marks omitted). 15 The Court will not order appointment of pro bono counsel at this time. The Court has 16 reviewed the record in this case, and at this time the Court is unable to make a determination that 17 Plaintiff is likely to succeed on the merits of his claims. Moreover, it appears that Plaintiff can 18 adequately articulate his claims. Plaintiff is advised that he is not precluded from renewing his 19 motion for appointment of pro bono counsel at a later stage of the proceedings. 20 III. ORDER 21 For the foregoing reasons, IT IS ORDERED that: 22 1. Plaintiff’s request for the Court to serve his reply is DENIED. Given the 23 electronic filing of this document, the Court will not require further service of this 24 document. 25 2. Plaintiff’s request for the Court to return the original copy of his reply is 26 GRANTED. 27 3. Plaintiff’s motion to provide Plaintiff with outside psychologist is DENIED. 28 4. Plaintiff’s motion for a court appointed independent investigator is DENIED. 4.40 UV VV EU MAR SOMO I Ie AY Tt 1 5. Plaintiffs motion for appointment of pro bono counsel is DENIED, without 2 prejudice. 3 6. The Clerk of Court is directed to send Plaintiff the original copy of his reply to 4 Defendants’ answer (ECF No. 47). 5 6 IT IS SO ORDERED. 7) — Dated: _ July 9, 2020 [Je hey 8 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28