(PC) Harris v. Munoz ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GRADY HARRIS, No. 2:16-cv-0830 TLN DB P 12 Plaintiff, 13 v. ORDER 14 JEFF MACOMBER, et al., 15 Defendants. 16 17 Plaintiff has requested the appointment of counsel. (ECF No. 70). This is plaintiff’s fifth 18 motion of this kind. (See generally ECF Nos. 9, 14, 20, 29). Plaintiff has also filed a motion for 19 the court clerk to issue subpoenas directing prison officials to bring records to a deposition that 20 took place on October 18, 2019. (ECF No. 71). For the reasons stated below, the court will deny 21 both motions. 22 I. MOTION FOR THE APPOINTMENT OF COUNSEL 23 The United States Supreme Court has ruled that district courts lack authority to require 24 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 25 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may request the voluntary 26 assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 27 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 28 //// 1 When determining whether “exceptional circumstances” exist, the court must consider 2 plaintiff’s likelihood of success on the merits as well as the ability of the plaintiff to articulate his 3 claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 4 965, 970 (9th Cir. 2009) (stating same and concluding district court did not abuse discretion in 5 declining to appoint counsel). The burden of demonstrating exceptional circumstances is on the 6 plaintiff. Id. Neither of these factors is dispositive and instead must be viewed together. Palmer, 7 560 F.3d at 970 (citing Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)), but see 8 Richards v. Harper, 864 F.2d 85, 87-88 (9th Cir. 1988) (finding no likelihood of success on merits 9 and not addressing “ability to articulate claims pro se” prong in exceptional circumstances 10 analysis prior to denying motion for counsel). Circumstances common to most prisoners, such as 11 lack of legal education and limited law library access, do not establish exceptional circumstances 12 that warrant a request for voluntary assistance of counsel. See, e.g., Wood, 900 F.2d at 1335-36 13 (denying appointment of counsel where plaintiff complained he had limited access to law library 14 and lacked legal education). 15 The fact that this action has not been dismissed outright three years into the proceedings 16 and after substantial discovery has been produced arguably suggests plaintiff has adequately 17 represented himself. Specifically, he has filed appropriate motions at the proper times and then 18 some. Thus, plaintiff clearly understands the proceedings, and he is capable of speaking for 19 himself and of gathering and presenting information needed to continue them. For these reasons, 20 the court does not find the required exceptional circumstances. Plaintiff’s request for the 21 appointment of counsel will therefore be denied. 22 II. MOTION FOR SUBPOENAS TO ISSUE 23 Plaintiff’s motion for subpoenas asks the court to issue subpoenas on his behalf that 24 require defendants to bring certain documents to an October 18, 2019, deposition and that require 25 defendants to provide responses to a list of his questions. For various reasons, this motion is both 26 inappropriate and untimely. Consequently, it shall be denied. 27 //// 28 //// 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. Plaintiff's motion for the appointment of counsel, filed October 17, 2019 (ECF No. 3 | 70), is DENIED, and 4 2. Plaintiff's motion for the court clerk to issue subpoenas to prison officials, filed 5 || October 17, 2019 CECF No. 71), is DENIED. 6 | Dated: October 21, 2019 7 8 9 ‘BORAH BARNES UNITED STATES MAGISTRATE JUDGE 10 11 DB/ORDERS/ORDERS PRISONER CIVIL RIGHTS □□□□□□□□□□□□□□□□□□□□□□□□ 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28