(PC) Bowcut v. Daram ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DONALD RAY BOWCUT, No. 2:21-cv-0736 DB P 12 Plaintiff, 13 v. ORDER 14 VASUKI DARAM, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with an action brought under 42 U.S.C. 18 §1983. Plaintiff has moved the court to appoint counsel. (ECF Nos. 43, 44, 49 and 50.) The 19 motions were prepared by inmate Stephen Snow, who identifies himself as a “jailhouse lawyer.” 20 Snow states that he began assisting plaintiff for the purpose of plaintiff’s challenge to a document 21 filed without plaintiff’s knowledge. The document purported to be a request by plaintiff to 22 dismiss his case. Plaintiff contended that he did not wish to dismiss his case and that the 23 document had been filed by another prisoner who assisted him previously with this case. 24 Plaintiff’s request to dismiss was withdrawn and this case has proceeded. Defendants filed a 25 motion for summary judgment on November 14, 2023. Plaintiff has not yet filed an opposition. 26 //// 27 //// 28 //// 1 Inmate Snow filed the requests for appointment of counsel on plaintiff’s behalf because he 2 will no longer help plaintiff with this case.1 Snow argues that plaintiff cannot prepare legal 3 documents because he is elderly, suffered brain damage as a child, only completed school through 4 the eighth grade, and reads at a second-grade level. He provides a copy of a “Rehabilitative Case 5 Plan” that lists plaintiff’s TABE2 reading score as 2.0. Snow also argues that the law library has 6 been frequently closed and that the librarian there is unable to help plaintiff due to her lack of 7 knowledge of the law. Finally, with his most recent motion, plaintiff provides a copy of a letter 8 from the attorney who represented him in his criminal case. The attorney states that plaintiff is 9 “not able to research legal issues or prepare any pleadings” and is “incapable” of understanding 10 legal issues without assistance. (ECF No. 50 at 7.) 11 District courts lack authority to require counsel to represent indigent prisoners in section 12 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional 13 circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28 14 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 15 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional 16 circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as 17 well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the 18 legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not 19 abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional 20 circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of 21 legal education and limited law library access, do not establish exceptional circumstances that 22 warrant a request for voluntary assistance of counsel. 23 Having considered the factors under Palmer, the court finds that plaintiff has failed to 24 meet his burden of demonstrating exceptional circumstances warranting the appointment of 25 1 Each of plaintiff’s four motions includes the same brief prepared by Mr. Snow. 26 2 “The TABE (Tests of Adult Basic Education) scores reflect an inmate's educational 27 achievement level and are expressed in numbers reflecting grade level.” Reynaldo v. Arnold, No. 2:15-cv-2182 KJM DB P, 2017 WL 3981602, at *3 (E.D. Cal. Sept. 11, 2017). 28 1 | counsel at this time. The court finds the legal issues in this case are not particularly complex. 2 | The only question raised by plaintiff's complaint is whether his primary care physician, and the 3 | officials who reviewed his appeals, were deliberately indifferent to plaintiff's serious medical 4 | needs when they did not do more to treat plaintiff's abdominal aneurysm and pain following his 5 | hernia surgery. Plaintiff's complaint showed that he can adequately describe his claims and his 6 | subsequent filings have also been appropriate. To the extent plaintiff has had assistance, he does 7 | not show that he can no longer get help from other inmates or from those at the law library. 8 | Inmate Snow’s opinion about the law librarian’s abilities is just that, an opinion. 9 This court recognizes that legal research and writing is difficult for prisoners, and 10 || particularly for prisoners with educational deficits. That said, those deficits are not extraordinary. 11 | This court finds plaintiff's situation is not sufficiently extraordinary to justify an attempt by the 12 | court to find a volunteer attorney. 13 Accordingly, IT IS HEREBY ORDERED that 14 1. Plaintiff's motions for the appointment of counsel (ECF Nos. 43, 44, 49 and 50) are 15 | denied without prejudice; and 16 2. Within thirty days of the date of this order, plaintiff shall file his opposition to 17 | defendants’ motion for summary judgment. 18 | Dated: December 12, 2023 20 1 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 22 23 24 | pLB:9 DB prisoner inbox/civil rights/S/bowe0736.31(3) 25 26 27 28