(PC) Wells v. Kendall ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANDRE WELLS, No. 2:17-cv-2709 AC P 12 Plaintiff, 13 v. ORDER 14 R. KENDALL, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 18 U.S.C. § 1983. In response to this court’s order, plaintiff has submitted a completed USM-285 19 form for defendant Robenson. ECF No. 48 at 2. He has also filed a motion for appointment of 20 counsel. ECF No. 51. 21 I. Service on Defendant Robenson 22 By order filed August 27, 2019, plaintiff was ordered to provide additional information 23 about defendant Robenson so that he may be served. ECF No. 46 at 1. Plaintiff was explicitly 24 advised that service of process had been unsuccessful “because no individual with that name and 25 working at the prison at the time specified in the complaint could be identified.” Id. Plaintiff has 26 now submitted a USM-285 form for defendant Robenson. ECF No. 48 at 2. However, the only 27 new information provided is that Robenson is an “African American C/O.” Id. This defendant 28 could not be identified by the name and approximate dates and location of employment already 1 provided; information about the defendant’s race is not sufficient new information to identify him 2 for service. Plaintiff must provide additional information such as an alternative name, badge 3 number, address, or any other information which would help to definitively identify the 4 defendant. Plaintiff shall promptly seek such information through discovery, the California 5 Public Records Act, California Government Code § 6250, et seq., or other means available to 6 plaintiff. If access to the required information is denied or unreasonably delayed, plaintiff may 7 seek judicial intervention. The court will not attempt further service on defendant Robenson until 8 plaintiff provides sufficient additional information with which to identify him. Failure to provide 9 such information will result in a recommendation that defendant Robenson be dismissed from this 10 action. 11 II. Motion for Appointment of Counsel 12 Plaintiff has also submitted another request for the appointment of counsel.1 ECF No. 51. 13 The United States Supreme Court has ruled that district courts lack authority to require counsel to 14 represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 15 298 (1989). In certain exceptional circumstances, the district court may request the voluntary 16 assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 17 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 18 “When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the 19 likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims 20 pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965, 21 970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden 22 of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to 23 most prisoners, such as lack of legal education and limited law library access, do not establish 24 exceptional circumstances that would warrant a request for voluntary assistance of counsel. 25 Plaintiff requests appointment of counsel on the ground that he has autism. ECF No. 51. This is 26 1 Defendants request that the court take judicial notice of a March 31, 2016 order in another case 27 denying plaintiff appointment of counsel based upon his mental health. ECF No. 53. The request will be denied because whether plaintiff’s condition over three years ago warranted appointment 28 of counsel has no bearing on whether his current condition requires appointment of counsel. 1 his fourth such request. See ECF Nos. 25, 33, 39. 2 Plaintiff has been previously advised that the mere claim that he has autism is not 3 sufficient to warrant appointment of counsel, and that he must “specify how his conditions 4 prevent him from proceeding without assistance and provide medical documentation supporting 5 his claimed impairments.” ECF No. 26 at 2; ECF No. 35 at 2; ECF No. 40 at 2. In support of his 6 motion, plaintiff has provided a dermatology evaluation that indicates that he has autism spectrum 7 disorder and ADHD. ECF No. 51 at 3. However, neither the medical report nor the motion 8 specifies how these impairments affect his ability to proceed in this case. Instead plaintiff has 9 requested the court subpoena his treating clinician to testify on his behalf or that the court 10 alternatively “google Autism/Asperger’s” for guidance. Id. at 1. The court will not order prison 11 mental health professionals to testify on plaintiff’s behalf. Also, general information about 12 autism does not tell the court how plaintiff himself is affected by the condition. Plaintiff needs to 13 summarize in his own words how his conditions affect his ability to proceed in this case and 14 provide copies of medical records that support such claims, not just records that show he is 15 autistic. Because plaintiff has not shown how his conditions prevent him from proceeding in this 16 case without assistance, the motion for appointment of counsel will be denied. 17 Accordingly, IT IS HEREBY ORDERED that: 18 1. Within sixty days from the date of service of this order, plaintiff shall complete and 19 submit the attached Notice of Submission of Documents to the court with the following 20 documents: 21 a. One completed USM-285 form for defendant Robenson that includes new 22 information with which to identify defendant Robenson; 23 b. One completed summons form. 24 2. If plaintiff cannot provide new information with which to identify defendant 25 Robenson, he must show good cause why he is unable to do so. 26 3. Plaintiff’s request for appointment of counsel (ECF No. 51) is DENIED without 27 prejudice. 28 //// ] 4. Defendants’ request for judicial notice (ECF No. 53) is denied. 2 | DATED: October 22, 2019 ~ 3 Htttenr— Lhor—e_ ALLISON CLAIRE 4 UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 ANDRE WELLS, No. 2:17-cv-2709 AC P 11 Plaintiff, 12 v. NOTICE OF SUBMISSION OF DOCUMENTS 13 R. KENDALL, et al., 14 Defendants. 15 16 Plaintiff hereby submits the following documents in compliance with the court’s order 17 filed _____________________: 18 1 completed summons form 19 1 completed USM-285 form 20 21 DATED: 22 ________________________________ 23 Plaintiff 24 25 26 27 28