(PC) Calloway v. CDCR ( 2022 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMISI JERMAINE CALLOWAY, No. 2:16-CV-2532-WBS-DMC-P 12 Plaintiff, 13 v. ORDER 14 CALIFORNIA DEPARTMENT OF CORRECTIONS AND 15 REHABILITATION, et al., 16 Defendants. 17 18 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 19 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s motion for the appointment of limited 20 counsel, ECF No. 43. 21 The United States Supreme Court has ruled that district courts lack authority to 22 require counsel to represent indigent prisoners in § 1983 cases. See Mallard v. United States Dist. 23 Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may request the 24 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 25 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 26 A finding of “exceptional circumstances” requires an evaluation of both the likelihood of success 27 on the merits and the ability of the plaintiff to articulate his claims on his own in light of the 28 complexity of the legal issues involved. See Terrell, 935 F.2d at 1017. Neither factor is 1 dispositive and both must be viewed together before reaching a decision. See id. In Terrell, the 2 Ninth Circuit concluded the district court did not abuse its discretion with respect to appointment 3 of counsel because: 4 . . . Terrell demonstrated sufficient writing ability and legal knowledge to articulate his claim. The facts he alleged and the issues he raised were not 5 of substantial complexity. The compelling evidence against Terrell made it extremely unlikely that he would succeed on the merits. 6 Id. at 1017. 7 8 In the present case, the Court does not at this time find the required exceptional 9 circumstances. Plaintiff contends, inter alia, that in light of his mental and physical health 10 conditions and the complexities of this case, he is entitled to the appointment of limited counsel to 11 cure or fix deficiencies in his complaint and serve all properly-joined defendants. See generally 12 ECF No. 43. Plaintiff also submits letters of rejection from several law firms and several records 13 of medical care as supporting documentation for his request. See id., Exhibits A and B. 14 Plaintiff’s motion for the appointment of limited counsel fails to satisfy either 15 factor of the “exceptional circumstances” standard. First, Plaintiff has demonstrated a clear ability 16 to articulate his claim on his own in light of the complexity of the legal issues involved. His 17 fourth amended complaint, ECF No. 40, cites several highly specific causes of action and 18 statutory justifications for the Court’s jurisdiction. See generally, id. Despite the deficiencies 19 cited, Plaintiff has demonstrated an ability to present specific theories of his case, including 20 retaliation and Eighth Amendment and Americans with Disabilities Act violations. See generally, 21 id. Plaintiff also cites case law in the correct format in at least three distinct instances. See id. at 22 22, 25, 26. It thus appears that Plaintiff has demonstrated the ability to conduct legal research 23 without the assistance of counsel. If Plaintiff feels that his access to the law library to conduct 24 research is being unduly restricted, he must present such a claim specifically. See ECF No. 43, 25 pg. 5. However, at this time, Plaintiff has provided no basis on which to conclude that he is 26 incapable of articulating his claim on his own. 27 / / / 28 / / / 1 Second, Plaintiff has failed to present a cogent argument or evidence to support the 2 proposition that this case is likely to succeed on the merits. For example, Plaintiff asserts that his 3 dialysis was withheld, allegedly as retaliation for his litigation and grievances. ECF No. 43, pg 7. 4 However, although he submits a selection of medical records, he presents no evidence which 5 would indicate such a gap in his treatment took place, or the basis for any alleged gap that could 6 be demonstrated. Id. 7 Plaintiff also claims to have gained access to relevant emails which would directly 8 support his claims of misconduct, see id. at 8, but such emails, if they exist, have never been 9 submitted to this Court. This Court cannot assess the possibility of success on the merits without 10 such evidence. Furthermore, evidence Plaintiff submitted with this motion appears to contradict 11 allegations submitted in his fourth amended complaint. Plaintiff’s fourth amended complaint, 12 ECF No. 40, pg. 15, alleges that Defendants’ malicious conduct and abuse resulted in the clotting 13 of his dialysis port. However, medical records attached to the present motion indicate that the clot 14 resulted from Plaintiff’s low blood pressure, a chronic condition he has had since 2009. See ECF 15 No. 43, Exhibit B, pg. 28. If the assessment in these records has been deemed incorrect by a 16 different medical professional, Plaintiff has not indicated this to be the case or provided 17 substantiating evidence to that effect. 18 Finally, Plaintiff’s claim remains in the preliminary stages of the litigation process, 19 and has not yet passed initial screening. Plaintiff’s matter concerns, e.g., the need “to gather 20 unlimited amounts of documented evidence and records of emials [sic] and confidential files,” id. 21 at 5, or the possibility of expert testimony, see id. at 9, are premature. 22 In light of Plaintiff’s ability to articulate his claims relative to the complexity of 23 the legal issues, as well as Plaintiff’s failure to demonstrate the likelihood of success on the 24 merits, Plaintiff fails to meet the “exceptional circumstances” standard required for the 25 appointment of counsel. 26 / / / 27 / / / 28 / / / 1 Accordingly, IT IS HEREBY ORDERED that Plaintiffs request for the 2 | appointment of counsel, ECF No. 43, is denied. 3 4 | Dated: June 3, 2022 Ssvcqo_ 5 DENNIS M. COTA 6 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