(PC) Thomas v. Haros ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PRENTICE RAY THOMAS, Case No.: 1:23-cv-00452 SKO (PC) 12 Plaintiff, ORDER DISCHARGING ORDER TO SHOW CAUSE 13 v. ORDER TO SUBMIT COMPLETED AND 14 PAUL HAROS, et al., SIGNED APPLICATION TO PROCEED IN FORMA PAUPERIS WITHIN 14 DAYS TO 15 Defendants. AVOID RECOMMENDATION TO DISMISS ACTION FOR FAILURE TO OBEY COURT 16 ORDERS 17 14-DAY DEADLINE 18 ORDER DENYING REQUEST TO APPOINT COUNSEL 19 20 Plaintiff Prentice Ray Thomas is proceeding pro se in this civil rights action pursuant to 21 42 U.S.C. § 1983. 22 I. INTRODUCTION 23 Plaintiff initiated this action by filing his complaint on March 24, 2023. (Doc. 1.) Plaintiff 24 also submitted an Application to Proceed In Forma Pauperis by a Prisoner; however, the 25 application was not signed. (Doc. 2.) 26 On April 28, 2023, the Court issued its Order to Submit Application to Proceed In Forma 27 Pauperis (IFP) or Pay Filing Fee Within 45 Days. (Doc. 5.) Plaintiff was served on that same date 1 On May 18, 2023, when Plaintiff had not filed a completed and signed IFP application as 2 ordered, the Court issued its Order to Show Cause (OSC) in writing why this action should not be 3 dismissed for Plaintiff’s failure to obey Court orders. (Doc. 7.) Plaintiff was provided 21 days 4 within which to file a response to the OSC, or, alternatively, to file either a completed and signed 5 IFP application or to pay the $402 filing fee. (Id. at 2.) 6 On May 30, 2023, Plaintiff filed a response to the OSC. (Doc. 8.) Plaintiff contends there 7 “were many condition of Wasco State Prison that stop [him] from giving full attention to [his] 8 complaint.” (Id.) He states he was attacked by ten inmates on February 28, 2023, and hospitalized 9 because of the attack. (Id.) Plaintiff contends he “sometime forget slow think or sometime have a 10 hard time remembering” things. (Id.) He asks the Court to consider providing “help … to keep up 11 with all orders of the court’s.” (Id.) Finally, Plaintiff states “please let me make payments on 12 filing fee one every month of my trust account.” (Id.) Plaintiff response was not accompanied by 13 a completed and signed IFP application or payment of the $402 filing fee. 14 II. DISCUSSION 15 Application to Proceed In Forma Pauperis 16 As the Court has indicated previously, the IFP application that Plaintiff submitted with his 17 original complaint is unsigned. The Court will not consider an unsigned IFP application. The 18 Court ordered Plaintiff to submit a completed and signed IFP application, (Doc. 5), which he has 19 failed to submit. Plaintiff asks the Court to allow him to make monthly payments toward the 20 filing fee. (Doc. 8.) The Court will not do so without a completed and signed IFP application 21 submitted for its consideration. The properly submitted application is necessary before the Court 22 determines whether the IFP application should be granted or denied. 23 Plaintiff will be afforded one final opportunity to comply with the Court’s order to submit 24 a completed and signed IFP application. If Plaintiff fails to submit a completed and signed IFP 25 application, or, alternatively, to pay the $402 filing fee in full, the Court will recommend this 26 action be dismissed for a failure to obey court orders and failure to prosecute. 27 // 1 Request for Appointment of Counsel 2 Plaintiff’s response to the OSC makes a vague reference to the Court providing “help” to 3 Plaintiff. (Doc. 8.) The Court construes Plaintiff’s request as a motion to appoint counsel. 4 Plaintiffs do not have a constitutional right to appointed counsel in § 1983 actions. Rand v. 5 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 952, 954 6 n.1 (9th Cir. 1998). Nor can the Court require an attorney to represent a party under 28 U.S.C. § 7 1915(e)(1). See Mallard v. U.S. Dist. Court, 490 U.S. 296, 304-05 (1989). However, in 8 “exceptional circumstances,” the Court may request the voluntary assistance of counsel pursuant 9 to section 1915(e)(1). Rand, 113 F.3d at 1525. 10 Given that the Court has no reasonable method of securing and compensating counsel, the 11 Court will seek volunteer counsel only in extraordinary cases. In determining whether 12 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 13 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 14 complexity of the legal issues involved.” Rand, 113 F.3d at 1525 (internal quotation marks & 15 citations omitted). 16 Here, the Court does not find the required exceptional circumstances. Even assuming 17 Plaintiff is not well versed in the law and has made serious allegations that, if proven, would 18 entitle him to relief, Plaintiff’s case is not exceptional. The Court is faced with similar cases 19 almost daily. While the Court recognizes that Plaintiff is at a disadvantage due to his pro se status 20 and his incarceration, the test is not whether Plaintiff would benefit from the appointment of 21 counsel. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). The test is whether 22 exceptional circumstances exist, and they do not exist in the present case. Indeed, circumstances 23 common to most prisoners, such as lack of legal education and limited law library access, do not 24 establish exceptional circumstances that would warrant a request for voluntary assistance of 25 counsel. See, e.g., Faultry v. Saechao, 2020 WL 2561596, at *2 (E.D. Cal., May 20, 2020) 26 (stating that “[c]ircumstances common to most prisoners, such as lack of legal education and 27 limited law library access, do not establish exceptional circumstances supporting appointment of 1 1915(e) when district court denied appointment of counsel despite fact that pro se prisoner “may 2 well have fared better-particularly in the realm of discovery and the securing of expert 3 testimony”). 4 Plaintiff is advised that the fact an attorney may be better able to perform research, 5 investigate, and represent a plaintiff does not change the analysis. There is little doubt most pro se 6 litigants “find it difficult to articulate [their] claims,” and would be better served with the 7 assistance of counsel. Wilborn, 789 F.2d at 1331. For this reason, in the absence of counsel, 8 federal courts employ procedures which are highly protective of a pro se litigant's rights. See 9 Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding pro se complaint to less stringent standard) 10 (per curiam). In fact, where a plaintiff appears pro se in a civil rights case, the court must construe 11 the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim–Panahi v. Los 12 Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal construction is 13 “particularly important in civil rights cases.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 14 1992). Thus, where a pro se litigant can “articulate his claims” in light of the relative complexity 15 of the matter, the “exceptional circumstances” which might require the appointment of counsel do 16 not exist. Wilborn, 789 F.2d at 1331; accord Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). 17 As for a plaintiff’s indigency, indigency does not qualify as an exceptional circumstance. 18 See Callender v. Ramm, No. 2:16-cv-0694 JAM AC P, 2018 WL 6448536, at *3 (E.D. Cal. Dec. 19 10, 2018) (“The law is clear: neither plaintiff’s indigence, nor his lack of education, nor his lack 20 of legal expertise warrant the appointment of counsel”). 21 At this stage in the proceedings, the Court cannot determine whether Plaintiff is likely to 22 succeed on the merits. Plaintiff’s complaint has not been screened as required by 28 U.S.C. § 23 1915A(a). The complaint asserts allegations that may or may not be proven; that determination 24 has not yet been made. And, at screening, the Court accepts Plaintiff’s factual allegations as true 25 for purposes of determining whether Plaintiff plausibly alleges a cognizable claim or claims 26 entitling him to relief in these proceedings. It does not accept Plaintiff’s legal conclusions as true. 27 Those conclusions will be tested later and only after the screening process has been completed. 1 In sum, Plaintiff faces challenges and circumstances faced by most pro se prisoner 2 litigants. Those circumstances, however, are not exceptional and do not warrant the appointment 3 of counsel. Rand, 113 F.3d at 1525. 4 III. CONCLUSION AND ORDER 5 For the reasons given above, the Court HEREBY ORDERS that: 6 1. The OSC issued May 18, 2023 (Doc. 7) is DISCHARGED; 7 2. Plaintiff SHALL file a completed and signed Application to Proceed In Forma 8 Pauperis within 14 days of the date of service of this Order; 9 3. The Clerk of the Court is DIRECTED to provide Plaintiff with an Application to 10 Proceed In Forma Pauperis form at the time of service of this Order; and 11 4. Plaintiff’s request for the appointment of counsel (Doc. 8) is DENIED. 12 WARNING: Plaintiff is advised that a failure to obey this Order will result in a 13 recommendation that this action be dismissed, without prejudice, for his failure to obey 14 court orders and failure to prosecute. 15 IT IS SO ORDERED. 16 17 Dated: May 31, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27