(PC)Martin v. Pfeiffer ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JARED ANDREW MARTIN, Case No. 1:22-cv-00889-AWI-BAM (PC) 12 Plaintiff, ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL WITHOUT 13 v. PREJUDICE AND DENYING MOTION FOR SUBPOENA AS PREMATURE 14 PFEIFFER, et al., (ECF No. 13) 15 Defendants. 16 17 Plaintiff Jared Andrew Martin (“Plaintiff”) is a county jail inmate and former state 18 prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. 19 § 1983. 20 On September 19, 2022, the Court screened Plaintiff’s first amended complaint and issued 21 findings and recommendations that this action proceed against Defendant Cardenas for failure to 22 protect in violation of the Eighth Amendment. (ECF No. 11.) The Court further recommended 23 that all other claims and defendants be dismissed based on Plaintiff’s failure to state claims upon 24 which relief may be granted. (Id.) On September 28, 2022, Plaintiff timely filed objections to the 25 findings and recommendations. (ECF No. 12.) The findings and recommendations, along with 26 Plaintiff’s objections, are pending before the assigned District Judge. 27 Currently before the Court is Plaintiff’s motion for appointment of counsel and motion for 28 a subpoena, filed November 30, 2022. (ECF No. 13.) Plaintiff requests his central file and 1 medical records from the California Department of Corrections and Rehabilitation. Plaintiff 2 states that these items contain material and relevant evidence, and have direct bearing on this 3 case. Plaintiff contends that Defendants have for years refused to give Plaintiff these items 4 because they are attempting to hide evidence that CDCR employees beat, abused, and tried to 5 murder Plaintiff. Plaintiff has tried numerous times to get this material, with no success. Plaintiff 6 states that extraordinary circumstances exist, as he has four section 1983 lawsuits in federal court 7 that have passed screening. Plaintiff requests court appointed counsel for these matters. (Id.) 8 Plaintiff is informed that he does not have a constitutional right to appointed counsel in 9 this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other 10 grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998), and the court cannot require an attorney to 11 represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. 12 of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court may 13 request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 14 1525. 15 Without a reasonable method of securing and compensating counsel, the Court will seek 16 volunteer counsel only in the most serious and exceptional cases. In determining whether 17 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 18 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 19 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 20 The Court has considered Plaintiff’s request, but does not find the required exceptional 21 circumstances. Even if it is assumed that Plaintiff has made serious allegations which, if proved, 22 would entitle him to relief, his case is not exceptional. This Court is faced with similar cases filed 23 almost daily by prisoners who are pursuing multiple cases simultaneously, with limited access to 24 legal resources and evidence. These plaintiffs also must litigate their cases without the assistance 25 of counsel. 26 Furthermore, at this stage in the proceedings, the Court cannot make a determination that 27 Plaintiff is likely to succeed on the merits. Although the Court has screened the first amended 28 complaint and found that Plaintiff has stated a cognizable claim, this does not indicate a 1 likelihood of success on the merits. In addition, those findings and recommendations have not yet 2 been adopted by the District Judge. Finally, based on a review of the record in this case, the 3 Court does not find that Plaintiff cannot adequately articulate his claims. 4 Plaintiff’s request for a subpoena is premature. As noted, the Court has screened the first 5 amended complaint and found that it states a cognizable claim, but those findings and 6 recommendations have not yet been adopted by the District Judge. If those findings and 7 recommendations are adopted in full, this case will proceed on the cognizable claim identified 8 and then the Court will open discovery. If Plaintiff is unable to obtain the information or 9 evidence he needs through the normal process of serving discovery on the named defendant(s) to 10 this action, he may renew his motion for a subpoena directed to non-party CDCR, if necessary. 11 Accordingly, IT IS HEREBY ORDERED as follows: 12 1. Plaintiff’s motion for appointment of counsel, (ECF No. 13), is DENIED, without 13 prejudice; and 14 2. Plaintiff’s motion for a subpoena, (ECF No. 13), is DENIED, as premature. 15 IT IS SO ORDERED. 16 17 Dated: December 2, 2022 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28