(PC) Foust v. Kuku-Ojo ( 2019 )


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  • 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CARL FOUST, No. 2:16-cv-2731 WBS AC P 12 Plaintiff, 13 v. ORDER 14 O. KUKU-OJO, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se with a civil rights action, has filed another 18 request for appointment of counsel. ECF No. 98. 19 The United States Supreme Court has ruled that district courts lack authority to require 20 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 21 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 22 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 23 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 24 “When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the 25 likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims 26 pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965, 27 970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden 28 of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to 1 most prisoners, such as lack of legal education and limited law library access, do not establish 2 exceptional circumstances that would warrant a request for voluntary assistance of counsel. 3 The request for appointment of counsel states that it was prepared by another inmate, Mr. 4 Grimes, who is the assigned DDP clerk. ECF No. 98 at 1-2. Mr. Grimes states that he assisted 5 plaintiff with his previous submissions to the court but is no longer allowed to do so “because it 6 violates the confidentiality considerations of a DDP prisoner.” Id. at 2. He further asserts that the 7 only person qualified and permitted to assist plaintiff would be a DDP LTA, which the prison has 8 been without since July 2019. Id. at 1-2. 9 The court has advised plaintiff on several occasions that the fact that he is disabled, by 10 itself, is not sufficient to demonstrate that extraordinary circumstances warranting the 11 appointment of counsel exist. ECF Nos. 49, 52, 56. A motion for the appointment of counsel 12 based on plaintiff’s disability must specify his condition and how it prevents him from proceeding 13 without assistance and must be accompanied by medical documentation that supports his claimed 14 impairments. Id. Although plaintiff’s motion states that he submitted 554 pages of medical 15 records to the court, it does not appear that they were received, and even if they had been, the 16 court will not sift through hundreds of pages of records to locate documents supporting plaintiff’s 17 claims. Plaintiff should submit only those document that directly support his claim of 18 impairment. 19 Furthermore, the only task currently before plaintiff is to respond to defendant’s 20 interrogatories and requests for production, as ordered by the court.1 ECF No. 97. Based on 21 plaintiff’s previous filings, it appears to the court that plaintiff should be capable of providing the 22 necessary responses without the assistance of counsel. 23 //// 24 //// 25 //// 26 27 1 In granting defendant’s motion to compel, the court also vacated the dispositive motions deadlines, which will not be re-set until the discovery matters have been resolved. ECF No. 97 at 28 4. 1 Accordingly, IT IS HEREBY ORDERED that plaintiffs motion for the appointment of 2 || counsel (ECF No. 98) is denied. . ~ 3 | DATED: November 25, 2019 4. bers — (A /, 4 ALLISON CLAIRE 5 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Document Info

Docket Number: 2:16-cv-02731

Filed Date: 11/26/2019

Precedential Status: Precedential

Modified Date: 6/19/2024