(PC) Jongpil Park v. Kitt ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JONGPIL PARK, Case No. 1:19-cv-01551-AWI-HBK (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR DOCUMENTATION AND APPOINTMENT OF 13 v. COUNSEL 14 VICTOR V. KITT, ET AL., (Doc. No. 29) 15 Defendants. ORDER DENYING PLAINTIFF’S MOTION FOR CONFORMITY OF DOCUMENTS 16 (Doc. Nos. 32) 17 18 19 This matter comes before the court upon initial review of this case that was reassigned to 20 the undersigned on November 17, 2020. (Doc. No. 33). Pending review, inter alia, are (1) 21 plaintiff’s motion for copies and appointment of counsel filed July 15, 2020 (Doc. No. 29); and 22 (2) plaintiff’s motion “for conformity of records/documents” filed July 21, 2020 (Doc. No. 32). 23 Plaintiff Jongpil Park, a current state prisoner, initiated this action by filing a pro se civil rights 24 complaint under 42 U.S.C. § 1983 on October 31, 2019. (Doc. No. 1). 25 1. Motion for Copies 26 Plaintiff requests a copy of the court’s Local Rules and a copy of his “response brief” filed 27 in response to defendant’s answer.” (Doc. No. 29). The court understands plaintiff’s “response 28 1 brief” to refer to his pending motions to strike defendants’ affirmative defenses. (See Doc. Nos. 2 24, 25). Plaintiff states he has not been able to access the law library or make copies of his 3 pleadings due to the global Covid 19 pandemic. Plaintiff does not otherwise explain why he 4 requires these materials. 5 Neither plaintiff’s pro se status nor his prisoner status entitle him to receive 6 complimentary copies. Blair v. CDCR, 2018 WL 1959532, at *6 f. 2 (E.D. Cal. Apr. 25, 2018). 7 The court previously summarized the relevant Local Rules applicable to pro se cases in its First 8 Informational Order in Prisoner/Civil Detainee Civil Rights Case filed November 4, 2019. (See 9 Doc. No. 3). The court has not stricken any of plaintiff’s filings or warned plaintiff about his 10 failure to comply with the court’s Local Rules. Having reviewed the docket, plaintiff is not 11 currently under any court-ordered deadline at this time. Defendants have filed answers to 12 plaintiff’s complaint and his motion to strike defendants’ affirmative defenses remains pending 13 before the court. Consequently, the court demies plaintiff request for copies of these documents. 14 Consistent with statute, the court will provide copies of documents and the docket sheet at 15 $0.50 per page. See 28 U.S.C. § 1914. Checks in the exact amount are payable to “Clerk, 16 USDC.” The court’s Local Rules are 190 pages in length (omitting the index) and his motions to 17 strike defendants’ affirmative defenses are 11 and 76 pages in length, respectively. Thus, to the 18 extent plaintiff wishes to obtain copies of the requested documents he should forward a check in 19 the amount of $138.50 to the Clerk if he wishes to obtain these documents. 20 2. Motion for Appointment of Counsel 21 Plaintiff, for the second time, seeks appointment of counsel. (Doc. No. 29). Plaintiff 22 argues appointment of counsel is warranted because: (1) English is his second language; (2) he is 23 incarcerated; and (3) defendants are represented by counsel. The court previously denied 24 plaintiff’s earlier request to appoint counsel because his claims were “not exceptionally 25 complicated” and his pleadings showed he had thus far capably prosecuted his case. (Doc. No. 26 28). The court finds no changed circumstances to warrant appointment of counsel. 27 As previously noted, the United States Constitution does not require appointment of 28 counsel in civil cases. See Lewis v. Casey, 518 U.S. 343, 354 (1996) (explaining Bounds v. Smith, 1 430 U.S. at 817, did not create a right to appointment of counsel in civil cases). Under 28 U.S.C. 2 § 1915, this court has discretionary authority to appoint counsel for an indigent to commence, 3 prosecute, or defend a civil action. See 28 U.S.C. § 1915(e)(1) (stating the court has authority to 4 appoint counsel for people unable to afford counsel); see also United States v. McQuade, 519 5 F.2d 1180 (9th Cir. 1978) (addressing relevant standard of review for motions to appoint counsel 6 in civil cases) (other citations omitted). However, motions to appoint counsel in civil cases are 7 granted only in “exceptional circumstances.” Id. at 1181. The court may consider many factors 8 including, but not limited to, proof of indigence, the likelihood of success on the merits, and the 9 ability of the plaintiff to articulate his or her claims pro se in light of the complexity of the legal 10 issues involved, to determine if exceptional circumstances warrant appointment of counsel. Id.; 11 see also Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other 12 grounds on reh’g en banc, 154 F.2d 952 (9th Cir. 1998). It is plaintiff’s burden to show 13 exceptional circumstances warrant appointment of counsel. Brown v. Reif, 2020 WL 1164595, at 14 *2 (E.D. Cal. Mar. 11, 2020). 15 Here, the court finds plaintiff has not met his burden to show appointment of counsel is 16 justified. Plaintiff’s filings in this matter are coherent and demonstrate an understanding of his 17 claims. The court finds no basis to take the exceptional step of appointing counsel. Prison 18 litigants often encounter language barriers, and “the court does not have the resources to appoint 19 counsel for every prisoner with limited English language and reading skills who files a civil rights 20 action.” Ayobi v. Romero, 2020 WL 6820871, at *1 (E.D. Cal. Oct. 9, 2020) (internal quotations 21 omitted). Limited English proficiency is “not an exceptional circumstance.” Garces v. Degadeo, 22 2007 WL 1521078, at *1 (E.D. Cal. May 22, 2007). Further, the court has “repeatedly” held 23 incarceration’s challenges on litigation do not constitute an exceptional circumstance. Wells v. 24 Cagle, 2018 WL 1617169, at *5 (E.D. Cal. Apr. 4, 2018). If plaintiff’s incarceration was an 25 exceptional circumstance, or if defendants’ representation by outside counsel was an exceptional 26 circumstance, nearly every prisoner would be entitled to counsel. Should this case progress and 27 plaintiff’s circumstances change, and he is able to demonstrate exceptional circumstances, he may 28 renew his motion for appointment of counsel at that time. 1 3. Motion for Conformity of Documents 2 Plaintiff filed a pleading titled “request for conformity of records/filings.” (Doc. No. 32). 3 Plaintiff seeks “access to the use of court facilities” or copy machine access because pandemic 4 restrictions on law library access hindered his ability to prosecute his case. (Id). 5 Plaintiff as a prisoner has a constitutionally protected right of access to courts guaranteed 6 by the Fourteenth Amendment. Bounds v. Smith, 430 U.S. 817, 821 (1977). Implicit within this 7 right of access to courts is the prisoner's right to have access to adequate law libraries or legal 8 assistance from trained individuals. “[T]he fundamental constitutional right of access to the 9 courts requires prison authorities to assist inmates in the preparation and filing of meaningful 10 legal papers by providing prisoners with adequate law libraries or adequate assistance from 11 persons trained in the law.” Id. at 828 (emphasis added) (footnote omitted). Precedent “does not 12 dictate a minimum number of hours or any other requirement for satisfying the right of access” to 13 them. Witkin v. Swarthout, 2013 WL 6054451, at *2 (E.D. Cal. Nov. 15, 2013). A limitation on 14 an inmate’s access to copy machines is “ordinary” and permissible as long as some access is 15 allowed. Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009). Because there is no established 16 minimum requirement for satisfying the access requirement; “a reviewing court should focus on 17 whether the individual plaintiff before it has been denied meaningful access.” Sands v. Lewis, 18 886 F.2d 1166, 1169 (9th Cir.1989) (internal quotations omitted). 19 As noted supra, plaintiff is currently not under a court-ordered deadline. And while the 20 court is sympathetic to the difficulties wrought by the current global Covid 19 pandemic, the 21 court is also aware that other prison litigants have been able to gain access to the law library by 22 demonstrating that they were under a court-ordered deadline. Plaintiff does not claim that his 23 inability to access the law library or the copy machine has prejudice him in advancing the instant 24 claim. Thus, plaintiff should comply with his institution’s regulations to gain access to the law 25 library or printing services, particularly during a historic pandemic that has impacted all aspects 26 of society. Thus, the court will deny plaintiff’s “motion for conformity of documents.” 27 Accordingly, it is ORDERED: 28 1. Plaintiff’s motion for copies and appointment of counsel (Doc. No. 29) is 1 DENIED. 2 2. Plaintiff's motion for conformity of documents (Doc. No. 32) is DENIED. 3 4 IT IS SO ORDERED. | ated: _ March 22, 2021 Mihaw. □□□ foareh Yack 6 HELENA M. BARCH-KUCHTA 7 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28