(PC)Wells v. Newsom ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANDRE WELLS, No. 2:20-cv-1557 AC P 12 Petitioner, 13 v. ORDER 14 GAVIN NEWSOME, 15 Respondent. 16 17 Pending before the court is petitioner’s second request for appointment of counsel. ECF 18 No. 10. As explained more fully below, the request is denied without prejudice because 19 petitioner has not yet paid the filing fee or obtained in forma pauperis status. 20 This case was opened based on a letter filed August 4, 2020 by Andre Wells, a state 21 prisoner at Mule Creek State Prison. The letter was entitled “Emergency Habeas Corpus, My 22 Life is in Jeopardy from CDCR and Conspirators Mental Health Staff & Inmates.” ECF No. 1. 23 By order filed August 6, 2020, the undersigned informed petitioner that, to proceed with this 24 action, he must file a formal petition for writ of habeas corpus and must pay the $5.00 filing fee 25 or request and obtain in forma pauperis status. ECF No. 3. With that order, the court sent 26 petitioner a blank habeas corpus petition and a blank application to proceed in forma pauperis. 27 Id. 28 //// 1 This court’s August 6, 2020 order also directed the Office of the California Attorney 2 General (AG) to specially appear in this action for the purpose of investigating and responding to 3 petitioner’s safety concerns. Id. On August 19, 2020, the AG submitted a statement that included 4 a declaration from petitioner’s clinician, S. Jacques, LCSW, who noted that petitioner 5 receives mental health treatment at the Enhanced Outpatient Program (EOP) level of care, is part 6 of the Developmental Disability Program (DDP), and is currently assigned to single-cell status. 7 ECF No. 9. LCSW Jacques typically meets with petitioner once a week and met with petitioner 8 on August 17, 2020 to discuss his safety concerns. As recounted by Jacques, petitioner did not 9 express any specific safety concerns but stated that he generally feared retaliation from staff for 10 filing lawsuits or submitting inmate appeals. Jacques concluded that petitioner “does not have 11 any safety concerns at Mule Creek.” ECF No. 9-1 at 2. Jacques also completed a suicide risk 12 assessment and determined that Wells was not in imminent danger of self-harm. Id. 13 Pending receipt of the AG’s report, petitioner filed his first request for appointment of 14 counsel, ECF No. 6, which this court denied without prejudice as “premature because he has not 15 yet filed a valid pleading in this case,” ECF No. 7 at 1. 16 Petitioner then filed a putative civil rights complaint, asserting RICO, discrimination and 17 retaliation claims. ECF No. 8. The last page of that document appears to request that the court 18 again send petitioner an application to proceed in forma pauperis. Id. at 7. A new application 19 will be sent with this order. 20 Thereafter, on August 21, 2020, petitioner filed a second request for appointment of 21 counsel, which is now pending. ECF No. 10. Petitioner requests appointment on three grounds: 22 (1) due to COVID prison modifications, he has no access to the law library or a copy machine; (2) 23 his autism renders the legal process difficult to understand; and (3) “this is an exceptional case 24 that will [a]ffect many, it is complex beyond the norms of general cases and involves multiple 25 defendants.” Id. at 1. 26 As with petitioner’s prior request for appointment of counsel, the pending request must 27 also be denied as premature. Because petitioner has not yet paid the filing fee or obtained in 28 forma pauperis status, the court cannot screen his putative complaint and determine whether this 1 case is more appropriately designated a civil rights action rather than a habeas corpus action. 2 Moreover, the standards for assessing a prisoner’s request for appointment of counsel are 3 different in civil rights and habeas cases,1 as are the filing costs.2 4 The court notes that on August 21, 2020, petitioner also filed a statement saying that he 5 continued to feel unsafe around some correctional officers, although some inmates were being 6 nicer to him. ECF No. 11. The undersigned is without authority to consider any matters in this 7 case until petitioner has been granted in forma pauperis status or paid the appropriate filing fee 8 and there is a valid pleading. 9 Accordingly, IT IS HEREBY ORDERED that: 10 1. Petitioner’s second request for appointment of counsel, ECF No. 10, is denied without 11 prejudice; 12 2. Petitioner shall, within thirty (30) days after the filing date of this order, submit a 13 completed application to proceed in forma pauperis on the form provided herewith, or pay the 14 appropriate filing fee; 15 3. Failure to timely comply with this order will result in a recommendation that this 16 action be dismissed without prejudice; and 17 //// 18 //// 19 20 1 There is no absolute right to appointment of counsel in either proceeding. In habeas cases, 18 U.S.C. § 3006A authorizes appointment of counsel at any stage of a habeas case “if the interests 21 of justice so require.” See Rule 8(c), Fed. R. Governing § 2254 Cases. In civil rights cases, appointment of counsel may be warranted under 28 U.S.C. § 1915(e)(1) upon a showing of 22 exceptional circumstances. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). Exceptional 23 circumstances include the plaintiff’s likelihood of success on the merits of his claims coupled with an inability to articulate his claims pro se in light of the complexity of the legal issues 24 involved. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). Circumstances common to most prisoners, such as lack of legal education and limited law library access, do not establish 25 exceptional circumstances warranting appointment of counsel. 26 2 As petitioner was previously informed, the filing fee for a habeas corpus action is $5.00. The costs for commencing a civil rights action total $400.00, reflecting a filing fee of $350.00 and 27 a $50.00 administrative fee. Litigants proceeding in forma pauperis are not required to pay the $50.00 administrative fee, and the remaining $350.00 fee is paid in installments from the 28 prisoner’s institutional trust account. 2 VEY EONS RAYVUUETOTE BO POI VII eR AY ST Tt 1 4. The Clerk of Court is directed to send petitioner, together with a copy of this order, a 2 | blank application to proceed in forma pauperis 3 | DATED: August 31, 2020 ~ 4 ita 2 MV, 5 ALLISON CLAIRE ‘ UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28