(PC) Merino v. Gomez ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FRANCISCO MERINO, No. 2:21-cv-0572 DAD KJN P 12 Plaintiff, 13 v. ORDER 14 GOMEZ, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se, in an action brought under 42 U.S.C. 18 § 1983. Pending before the court are plaintiff’s motions for appointment of counsel (ECF Nos. 19 134, 136), and plaintiff’s letters addressing overpayment of the filing fee (ECF Nos. 137, 138). 20 Motions for Appointment of Counsel 21 District courts lack authority to require counsel to represent indigent prisoners in section 22 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional 23 circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28 24 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 25 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional 26 circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as 27 well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the 28 legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not 1 abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional 2 circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of 3 legal education and limited law library access, do not establish exceptional circumstances that 4 warrant a request for voluntary assistance of counsel. 5 Having considered the factors under Palmer, the court finds that plaintiff failed to meet his 6 burden of demonstrating exceptional circumstances warranting the appointment of counsel at this 7 time. 8 Letters re: Overpayment of Filing Fee 9 Background 10 Plaintiff paid the filing fee in full for the instant action. 11 On November 28, 2022, the undersigned ordered the California Department of 12 Corrections and Rehabilitation (“CDCR”) to file a status report clarifying their records regarding 13 plaintiff’s filing fee owed in the instant action. (ECF No. 124.) On December 12, 2022, CDCR 14 informed the court that it mistakenly sent three overpayments to the court toward plaintiff’s filing 15 fee: 1) $8 on April 1, 2022; 2) $14 on July 1, 2022; and 3) $6 on November 1, 2022. (ECF No. 16 130.) 17 On December 16, 2022, the undersigned directed the Financial Office of the Court to 18 refund to plaintiff the $28 overpaid by CDCR for the filing fee in this action. (ECF No. 131.) 19 After the December 16, 2022 order was filed, the Financial Office of the Court informed 20 the undersigned that CDCR overpaid $36, rather than $28, for plaintiff’s filing fee. (ECF No. 21 133.) Accordingly, on December 21, 2022, the undersigned directed the Financial Office of the 22 court to refund $36 to plaintiff. (Id.) 23 Discussion 24 On January 3, 2023, plaintiff filed a letter claiming that CDCR continues to take money 25 from his trust account to pay the filing fee in this action. (ECF No. 137.) Attached to this letter is 26 a statement from plaintiff’s trust account reflecting that on July 1, 2022, CDCR send the court 27 $14 for the filing fee in this action. (Id. at 3.) On January 4, 2023, plaintiff filed another letter 28 claiming that CDCR continues to take money from his trust account to pay the filing fee in this 1 || action. (ECF No. 138.) Attached to this letter is a statement from plaintiff's trust account 2 | reflecting that on November 1, 2022, CDCR sent the court $6 for the filing fee in this action. (Id. 3 | at 4.) 4 As discussed above, the court refunded to plaintiff the $14 and $6 overpaid by CDCR on 5 | July 1, 2022, and November 1, 2022. Accordingly, the concerns raised in plaintiff's letters, filed 6 || January 3, 2023, and January 4, 2023, regarding overpayment of the filing fee are deemed 7 || resolved. 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. Plaintiff's motions for the appointment of counsel (ECF Nos. 134, 136) are denied 10 without prejudice; 11 2. Plaintiff's concerns regarding overpayment of the filing fee raised in his letters filed 12 January 3, 2023, and January 4, 2023 (ECF Nos. 137, 138), are deemed resolved. 13 || Dated: January 18, 2023 i Aectl Aharon 15 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 16 |} merio572.31(8) 17 18 19 20 21 22 23 24 25 26 27 28