(PC) Wilbanks v. Tappen ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JONATHAN WILBANKS, No. 2:21-cv-0026 KJN P 12 Plaintiff, 13 v. ORDER 14 T. TAPPEN, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se, in an action brought under 42 U.S.C. 18 § 1983. Plaintiff requests that the court appoint counsel. District courts lack authority to require 19 counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. 20 Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney 21 to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 22 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 23 When determining whether “exceptional circumstances” exist, the court must consider plaintiff’s 24 likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro 25 se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 26 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The 27 burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances 28 //// 1 | common to most prisoners, such as lack of legal education and limited law library access, do not 2 | establish exceptional circumstances that warrant a request for voluntary assistance of counsel. 3 Having considered the factors under Palmer, the court finds that plaintiff has failed to 4 | meet his burden of demonstrating exceptional circumstances warranting the appointment of 5 | counsel at this time.! 6 Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for the appointment of 7 | counsel (ECF No. 3) is denied without prejudice. 8 | Dated: January 21, 2021 ? Al i; Noreen 10 KENDALL I. Wan UNITED STATES MAGISTRATE JUDGE 11 /wilb0026.31 12 13 14 15 16 17 18 ' In his motion, plaintiff claims that appeals were denied by several appeal reviewers at different prisons, and by “the Headquarters (Secretaries), Deputy and Associate Wardens.” (ECF No. 3 at 19 | 2.) However, plaintiff cannot state a due process claim based on a defendant’s role in the inmate appeal process. The Due Process Clause protects plaintiff against the deprivation of liberty 20 | without the procedural protections to which he is entitled under the law. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). However, plaintiff has no stand-alone due process rights related to the 21 administrative grievance process itself. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); 97 | Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). A prison official’s denial of a grievance does not itself violate the constitution. Evans v. Skolnik, 637 F. App’x 285, 288 (9th Cir. 2015). 23 | Thus, the denial, rejection, or cancellation of a grievance does not constitute a due process violation. See, e.g., Wright v. Shannon, 2010 WL 445203, at *5 (E.D. Cal. 2010) (plaintiffs 24 | allegations that prison officials denied or ignored his inmate appeals failed to state a cognizable claim under the First Amendment); Towner v. Knowles, 2009 WL 4281999 at *2 (E.D. Cal. 25 2009) (plaintiff's allegations that prison officials screened out his inmate appeals without any 26 basis failed to indicate a deprivation of federal rights); Williams v. Cate, 2009 WL 3789597, at *6 (E.D. Cal. 2009) (“Plaintiff has no protected liberty interest in the vindication of his 27 || administrative claims.”). “Because there is no right to any particular grievance process, it is impossible for due process to have been violated by ignoring or failing to properly process prison 28 grievances.” Daniels v. Aguillera, 2018 WL 1763311 (E.D. Cal. Apr. 12, 2018).