(PC) Wilbanks v. Tappen ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JONATHAN WILBANKS, No. 2:21-cv-0026 KJM KJN P 12 Plaintiff, 13 v. ORDER 14 T. TAPPEN, 15 Defendant. 16 17 Plaintiff is a state prisoner, proceeding pro se and in forma pauperis, with a civil rights 18 action pursuant to 42 U.S.C.§ 1983. On September 26, 2022, defendant filed a motion to compel 19 discovery responses, asserting that plaintiff failed to file responses to defendant’s interrogatories 20 or request for production of documents. On October 17, 2022, plaintiff requested appointment of 21 counsel, which was prepared by another inmate on plaintiff’s behalf. (ECF No. 41 at 5.) 22 The court has determined that this case may be appropriate for appointment of counsel for 23 a limited purpose. 24 Plaintiff’s Allegations 25 Plaintiff contends that on July 3, 2018, defendant T. Tappen used excessive force on 26 plaintiff at California State Prison, Sacramento. Specifically, defendant Tappen shot plaintiff 27 three times in rapid succession with “223 live rounds” or “mini 14 rounds” with direct hits to 28 plaintiff’s left shoulder, through plaintiff’s face, and to the top of his head. (ECF No. 16 at 2, 3.) 1 Plaintiff sustained loss of vision, metal shrapnel in his rotator cuff, inability to breathe through his 2 nose, fractured teeth, reconstructed face, and severe PTSD. 3 Appointment of Counsel 4 The United States Supreme Court has ruled that district courts lack authority to require 5 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 6 U.S. 296, (1989). In certain exceptional circumstances, however, the court may request the 7 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 8 1015 (9th Cir. 1990); Wood v. Housewright, 900 F.2d 1332 (9th Cir. 1990). 9 Discussion 10 Here, plaintiff states that because he sustained a gunshot wound to the face, which 11 required facial reconstruction surgery, it is difficult for him to read and retain information, which 12 makes it “impossible for him to articulate his thoughts and ideas about the case.” (ECF No. 41 at 13 3.) Plaintiff provided copies of his failed efforts to obtain counsel on his own. Plaintiff contends 14 that defendant has propounded discovery requests that are impossible for plaintiff to answer due 15 to his incarceration. For example, he states that he is unable to view footage of the incident or 16 question staff or other inmates who may have information about the case. He asserts that because 17 this case involves gunfire, expert testimony will be required, for example, to address the locations 18 of bullet wound entry and exit. 19 Good cause appearing, this court will refer this case to the ADR and Pro Bono Program to 20 seek the voluntary assistance of counsel for the limited purpose of assisting plaintiff with 21 discovery. In light of this order, defendant’s motion to compel discovery (ECF No. 40) is denied 22 without prejudice, and all discovery is stayed pending appointment of counsel. Once counsel is 23 appointed, a revised scheduling order will issue and plaintiff will be granted an extension of time 24 to respond to the propounded discovery at issue in defendant’s motion to compel. 25 Accordingly, IT IS HEREBY ORDERED that: 26 1. Plaintiff’s motion to appoint counsel (ECF No. 41) is granted, subject to an attorney 27 accepting the request for voluntary assistance for the limited purpose of assisting plaintiff with 28 discovery. ] 2. This case is referred to the ADR and Pro Bono Program to seek the voluntary 2 || assistance of counsel. 3 3. Defendant’s motion to compel discovery (ECF No. 40) is denied without prejudice. 4 4. Discovery is stayed pending further order of this court. 5 5. The Clerk of the Court shall serve a copy of this order on Sujean Park, Director, ADR 6 || and Pro Bono Program. 7 || Dated: November 1, 2022 Foci) Aharon 9 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 10 /vilb0026.31a 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28