(PC) Penn v. Warden of Kern Valley State Prison ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARLIN PENN, Case No. 1:18-cv-01482-AWI-HBK (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S FOURTH MOTION TO APPOINT COUNSEL 13 v. (Doc. No. 47) 14 A. LUCAS, ET. AL., 15 Defendants. 16 17 Pending before the Court is Plaintiff’s fourth motion to appoint counsel, filed May 26, 18 2022. (Doc. No. 47). Plaintiff believes it will be impossible to proceed in this action without 19 counsel because he is experiencing loss of hearing and dizziness from an April 2022 assault and 20 because his legal material and typewriter were taken from him. (Id. at 1-2). He states that on 21 April 8, 2022, Salinas Valley State Prison Custody Staff assaulted him. (Id. at 1). Plaintiff 22 believes “it is very likely” he was attacked because of this pending civil rights action. (Id.). He 23 further alleges that due to him complaining about the assault, he was charged with “battery on a 24 peace officer” and “separated from his legal documents and typewriter.” (Id.). Plaintiff also 25 alleges he has no access to legal books and documents and that his U.S Postal Mail “is severally 26 circumvented by CDCR and the state of California.” (Id.). 27 In apparent support of his mail tampering allegations, Plaintiff states Deputy Attorney 28 General Corso received a copy of a letter Plaintiff drafted to Judge Newman and he is unsure why 1 the attorney received the letter. (Id. at 2). Plaintiff also questions why the Court has not 2 responded to his letter asking to reschedule the settlement conference. (Id.). 3 The Court first addresses Plaintiff’s questions concerning the mail and then turns to 4 address his motion to appoint counsel. Letters to the Court or to judges are often stricken and 5 returned to the sender. (Doc. No. 2 at 2). To the extent Plaintiff wishes to request relief from the 6 Court a motion must be filed in the Court requesting the relief Plaintiff seeks. (Id.). Further, the 7 settlement conference in this case resulted in an impasse. (Doc. No. 45). 8 Regarding Plaintiff’s request for appointment of counsel, the Court has previously 9 explained that the United States Constitution does not require appointment of counsel in civil 10 cases. See Lewis v. Casey, 518 U.S. 343, 354 (1996) (explaining Bounds v. Smith, 430 U.S. at 11 817, did not create a right to appointment of counsel in civil cases). Under 28 U.S.C. § 1915, this 12 court has discretionary authority to appoint counsel for an indigent to commence, prosecute, or 13 defend a civil action. See 28 U.S.C. § 1915(e)(1) (stating the court has authority to appoint 14 counsel for people unable to afford counsel); see also United States v. McQuade, 519 F.2d 1180 15 (9th Cir. 1978) (addressing relevant standard of review for motions to appoint counsel in civil 16 cases) (other citations omitted). However, motions to appoint counsel in civil cases are granted 17 only in “exceptional circumstances.” Id. at 1181. The court may consider many factors to 18 determine if exceptional circumstances warrant appointment of counsel including, but not limited 19 to, proof of indigence, the likelihood of success on the merits, and the ability of the plaintiff to 20 articulate his or her claims pro se in light of the complexity of the legal issues involved. Id.; see 21 also Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds 22 on reh’g en banc, 154 F.2d 952 (9th Cir. 1998). 23 The Court has previously denied Plaintiff’s three prior motions to appoint counsel. (Doc. 24 No. 22 at 2) (referring to the prior two motions to appoint counsel). Like before, Plaintiff has not 25 met his “burden of demonstrating exceptional circumstances.” Jones v. Chen, 2014 WL 26 12684497, at *1 (E.D. Cal. Jan. 14, 2014). While it is unfortunate Plaintiff is now housed in 27 secured housing due to the altercation with correctional staff, many prisoner-plaintiffs litigate 28 while in secured housing. Normal challenges faced by pro se litigants do not warrant 1 | appointment of counsel. Siglar v. Hopkins, 822 F. App'x 610, 612 (9th Cir. 2020) (denying 2 | appointment of counsel because the plaintiff's “circumstances were not exceptionally different 3 | from the majority of the challenges faced by pro se litigants.”). 4 Plaintiff has capably filed motions and his complaint has plausibly stated a claim to 5 | survive an initial screening. Plaintiff does not need a typewriter to litigate his action. While 6 | there are deadlines set forth in the Case Management and Scheduling order, no deadline for 7 | Plaintiff is imminent and discovery does not conclude until December 19, 2022. (Doc. No. 46). 8 | Plaintiff has not demonstrated exceptional circumstances warrant appointment of counsel at this 9 | stage of the proceedings. 10 Accordingly, it is ORDERED: 11 Plaintiff's fourth motion to appoint counsel (Doc. No. 47) is DENIED. 12 'S | Dated: _ June 3, 2022 Mile. Wh. foareh Zaskth 14 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28