(PC) Gipbsin v. Kernan ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 CLARENCE A. GIPBSIN, No. 2:12-cv-0556 KJM DB P 11 Plaintiff, 12 v. ORDER 13 SCOTT KERNAN, et al., 14 Defendants. 15 16 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights 17 action under 42 U.S.C. § 1983. Plaintiff claims defendants violated his rights under the Eighth 18 Amendment by failing to timely transfer him to a state hospital. Presently before the court are 19 plaintiff’s motions requesting the appointment of counsel (ECF Nos. 278, 281, 285, 287, 291) and 20 motions seeking miscellaneous relief (ECF Nos. 278, 282, 283, 290). 21 I. Motions Seeking the Appointment of Counsel 22 A. Plaintiff’s Motions 23 In support of his motions to appoint counsel plaintiff argues that his vision is declining, 24 and he has been prescribed glasses. (ECF No. 278.) He also indicates that counsel should be 25 Appointed because he is pursuing a motion pursuant to California Senate Bill 14371 in state court 26 1 California Senate Bill 1437 changed the liability for felony murder and allows individuals 27 convicted under the prior standard to petition the court that sentenced them to vacate the murder conviction and be resentenced on the remaining counts. Davis v. Munoz, No. 5:19-cv-0329 JAK 28 1 and he will be released soon. (ECF Nos. 278, 281, 287.) Plaintiff also alleges that he cannot 2 afford counsel (ECF No. 291), has encountered issues obtaining writing supplies, and he is not 3 receiving his mail (ECF No. 285). 4 B. Legal Standards 5 The United States Supreme Court has ruled that district courts lack authority to require 6 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 7 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 8 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 9 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 10 The test for exceptional circumstances requires the court to evaluate the plaintiff’s 11 likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 12 light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 13 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 14 common to most prisoners, such as lack of legal education and limited law library access, do not 15 establish exceptional circumstances that would warrant a request for voluntary assistance of 16 counsel. 17 In the present case, the court does not find the required exceptional circumstances. 18 Among the reasons cited, plaintiff’s need for glasses and the COVID-19 pandemic are nothing 19 more than circumstances common to most inmates are not grounds for the appointment of 20 counsel. 21 C. Analysis 22 In order to appoint counsel, the court must evaluate plaintiff’s likelihood of success on the 23 merits. Because the undersigned has issued findings and recommendations currently with the 24 instant order recommending that summary judgment be granted in favor of defendants, the court 25 finds that plaintiff does not have a likelihood of success on the merits. Accordingly, the court 26 will deny the motions to appoint counsel. 27 //// 28 //// 1 II. Motions Seeking Miscellaneous Relief 2 Plaintiff’s various motions often contain complaints regarding his current conditions of 3 confinement. For example, plaintiff states he has not received packages and he has filed a health 4 care grievance regarding dental issues. Plaintiff is advised that those issues are unrelated to his 5 underlying claim in this action. Therefore, the court cannot grant relief based on current issues in 6 this unrelated civil rights action. If plaintiff feels that his current conditions of confinement 7 violate his constitutional rights, he may file a separate § 1983 claim after exhausting 8 administrative remedies. 9 A. Motion for Federal Investigation 10 Plaintiff alleges he can show that correctional officers let inmates get hurt on the yard 11 without pressing their alarm and officers allow inmates to go into other inmates’ cells. (ECF No. 12 282.) He also claims he has seen inmates with drugs and weapons. Plaintiff seeks a federal 13 investigation into his allegations. However, these allegations do not relate to plaintiff’s 14 underlying claim in this action. Therefore, the court will deny plaintiff’s motion. 15 B. Motion for Clarification of Scheduling Order 16 Plaintiff seeks clarification of the schedule in this action. (ECF No. 283.) As the court 17 has recommended summary judgment be granted in this action, there are no pending deadlines 18 other than the time for filing objections to the findings and recommendations. Any future court 19 dates will depend on whether the findings and recommendations are adopted or rejected. Plaintiff 20 will be notified of any future proceedings in this action. The court will grant the motion to the 21 extent that this order shall serve as clarification of the schedule in this action. 22 C. Motion for Pretrial Review 23 Plaintiff seeks to set this matter for hearing. (ECF No. 290.) However, pursuant to Local 24 Rule 230(l) in matters where one party is incarcerated and proceeding pro se as plaintiff is in this 25 action, all motions shall be submitted on the record without oral argument unless otherwise 26 ordered by the court. Additionally, as set forth above, because findings and recommendations are 27 now pending there is no need for pretrial review at this time. Accordingly, the court will deny 28 plaintiff’s motion for hearing. 1 Ti. Conclusion 2 For the reasons set forth above, IT IS HEREBY ORDERED that: 3 1. Plaintiff's motions to appoint of counsel (ECF Nos. 278, 281, 285, 287, 291) are 4 | denied. 5 2. Plaintiff's motion for federal investigation (ECF No. 282) is denied. 6 3. Plaintiff's motion for clarification (ECF No. 283) is granted. 7 4. Plaintiff's motion for hearing (ECF No. 291) is denied. 8 || Dated: December 30, 2020 9 10 ll ORAH BARNES UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 DLB:12 21 | DLB:1/Orders/Prisoner.Civil.Rights/gipb0556. var 22 23 24 25 26 27 28