(PC) Calloway v. Naphcare Inc. ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMISI JERMAINE CALLOWAY, No. 2:24-cv-2446 CKD P 12 Plaintiff, 13 v. ORDER AND 14 NAPHCARE INCORPORATED, et al., FINDINGS AND RECOMMENDATIONS 15 Defendants. 16 17 Plaintiff is a California prisoner proceeding pro se with a civil action. This proceeding 18 was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 19 Plaintiff has requested leave to proceed in forma pauperis. Title 28 U.S.C. § 1915(g) 20 reads as follows: 21 In no event shall a prisoner bring a civil action . . . [in forma pauperis] if the prisoner has, on 3 or more prior occasions, while incarcerated 22 or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is 23 frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 24 physical injury. 25 On October 15, 2020, in Calloway v. Munguia, 2:19-cv-1792 DJC CKD P, the court 26 found that plaintiff had “struck out” for purposes of 28 U.S.C. § 1915(g) and recommended that 27 in forma pauperis status which had previously been granted in that action be revoked. The court’s 28 findings and recommendations were adopted by the district court judge assigned to the case at the 1 time on January 21, 2021. In forma pauperis status was revoked. For the reasons stated in the 2 court’s October 15, 2020, findings and recommendations, plaintiff has “struck out” for purposes 3 of 28 U.S.C. § 1915(g). 4 The allegations in plaintiff’s complaint concern prior wrongs and plaintiff does not point 5 to anything suggesting he is in imminent danger of serious physical injury. The court notes that 6 at least some of the allegations in plaintiff’s complaint concern treatment he has received for 7 issues with his kidneys and that plaintiff seeks a kidney transplant. However, plaintiff does point 8 to facts suggesting that the treatment he is presently receiving for his kidney issues amounts to 9 imminent danger of serious injury. 10 In light of the foregoing, the court will recommend that plaintiff’s request for leave to 11 proceed in forma pauperis be denied. 12 At the end of plaintiff’s complaint, plaintiff requests that the court appoint counsel. 13 District courts lack authority to require counsel to represent indigent prisoners in section 1983 14 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional 15 circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28 16 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 17 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional 18 circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as 19 well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the 20 legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not 21 abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional 22 circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of 23 legal education and limited law library access, do not establish exceptional circumstances that 24 warrant a request for voluntary assistance of counsel. 25 Having considered the factors under Palmer, the court finds that plaintiff has failed to 26 meet his burden of demonstrating exceptional circumstances warranting the appointment of 27 counsel at this time. 28 ///// ] Accordingly, IT IS HEREBY ORDERED that: 2 1. Plaintiff's motion for the appointment of counsel is denied. 3 2. The Clerk of the Court assign a district court judge to this case. 4 IT IS HEREBY RECOMMENDED that: 5 1. Plaintiff's request for leave to proceed in forma pauperis (ECF No. 2) be denied. 6 2. Plaintiff be granted fourteen days within which to pay the $405 filing fee for this 7 || action. 8 These findings and recommendations are submitted to the United States District Judge 9 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 10 || after being served with these findings and recommendations, plaintiff may file written objections 11 || with the court. The document should be captioned “Objections to Magistrate Judge’s Findings 12 || and Recommendations.” Plaintiff is advised that failure to file objections within the specified 13 || time waives the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th 14 | Cir. 1991). 15 | Dated: September 19, 2024 / ae □□ / a Ly a 16 CAROLYN K DELANEY 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 | any call2446.k 23 24 25 26 27 28