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Penn v. Lucas

United States District Court, Eastern District of California
Jun 3, 2022
1:18-cv-01482-AWI-HBK (PC) (E.D. Cal. Jun. 3, 2022)

Opinion

1:18-cv-01482-AWI-HBK (PC)

06-03-2022

MARLIN PENN, Plaintiff, v. A. LUCAS, ET. AL., Defendants.


ORDER DENYING PLAINTIFF'S FOURTH MOTION TO APPOINT COUNSEL

(DOC. NO. 47)

HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE

Pending before the Court is Plaintiff's fourth motion to appoint counsel, filed May 26, 2022. (Doc. No. 47). Plaintiff believes it will be impossible to proceed in this action without counsel because he is experiencing loss of hearing and dizziness from an April 2022 assault and because his legal material and typewriter were taken from him. (Id. at 1-2). He states that on April 8, 2022, Salinas Valley State Prison Custody Staff assaulted him. (Id. at 1). Plaintiff believes “it is very likely” he was attacked because of this pending civil rights action. (Id.). He further alleges that due to him complaining about the assault, he was charged with “battery on a peace officer” and “separated from his legal documents and typewriter.” (Id.). Plaintiff also alleges he has no access to legal books and documents and that his U.S Postal Mail “is severally circumvented by CDCR and the state of California.” (Id.).

In apparent support of his mail tampering allegations, Plaintiff states Deputy Attorney General Corso received a copy of a letter Plaintiff drafted to Judge Newman and he is unsure why the attorney received the letter. (Id. at 2). Plaintiff also questions why the Court has not responded to his letter asking to reschedule the settlement conference. (Id.).

The Court first addresses Plaintiff's questions concerning the mail and then turns to address his motion to appoint counsel. Letters to the Court or to judges are often stricken and returned to the sender. (Doc. No. 2 at 2). To the extent Plaintiff wishes to request relief from the Court a motion must be filed in the Court requesting the relief Plaintiff seeks. (Id.). Further, the settlement conference in this case resulted in an impasse. (Doc. No. 45).

Regarding Plaintiff's request for appointment of counsel, the Court has previously explained that the United States Constitution does not require appointment of counsel in civil cases. See Lewis v. Casey, 518 U.S. 343, 354 (1996) (explaining Bounds v. Smith, 430 U.S. at 817, did not create a right to appointment of counsel in civil cases). Under 28 U.S.C. § 1915, this court has discretionary authority to appoint counsel for an indigent to commence, prosecute, or defend a civil action. See 28 U.S.C. § 1915(e)(1) (stating the court has authority to appoint counsel for people unable to afford counsel); see also United States v. McQuade, 519 F.2d 1180 (9th Cir. 1978) (addressing relevant standard of review for motions to appoint counsel in civil cases) (other citations omitted). However, motions to appoint counsel in civil cases are granted only in “exceptional circumstances.” Id. at 1181. The court may consider many factors to determine if exceptional circumstances warrant appointment of counsel including, but not limited to, proof of indigence, the likelihood of success on the merits, and the ability of the plaintiff to articulate his or her claims pro se in light of the complexity of the legal issues involved. Id.; see also Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds on reh'gen banc, 154 F.2d 952 (9th Cir. 1998).

The Court has previously denied Plaintiff's three prior motions to appoint counsel. (Doc. No. 22 at 2) (referring to the prior two motions to appoint counsel). Like before, Plaintiff has not met his “burden of demonstrating exceptional circumstances.” Jones v. Chen, 2014 WL 12684497, at *1 (E.D. Cal. Jan. 14, 2014). While it is unfortunate Plaintiff is now housed in secured housing due to the altercation with correctional staff, many prisoner-plaintiffs litigate while in secured housing. Normal challenges faced by pro se litigants do not warrant appointment of counsel. Siglar v. Hopkins, 822 Fed.Appx. 610, 612 (9th Cir. 2020) (denying appointment of counsel because the plaintiff's “circumstances were not exceptionally different from the majority of the challenges faced by pro se litigants.”).

Plaintiff has capably filed motions and his complaint has plausibly stated a claim to survive an initial screening. Plaintiff does not need a typewriter to litigate his action. While there are deadlines set forth in the Case Management and Scheduling order, no deadline for Plaintiff is imminent and discovery does not conclude until December 19, 2022. (Doc. No. 46). Plaintiff has not demonstrated exceptional circumstances warrant appointment of counsel at this stage of the proceedings.

Accordingly, it is ORDERED:

Plaintiff's fourth motion to appoint counsel (Doc. No. 47) is DENIED.


Summaries of

Penn v. Lucas

United States District Court, Eastern District of California
Jun 3, 2022
1:18-cv-01482-AWI-HBK (PC) (E.D. Cal. Jun. 3, 2022)
Case details for

Penn v. Lucas

Case Details

Full title:MARLIN PENN, Plaintiff, v. A. LUCAS, ET. AL., Defendants.

Court:United States District Court, Eastern District of California

Date published: Jun 3, 2022

Citations

1:18-cv-01482-AWI-HBK (PC) (E.D. Cal. Jun. 3, 2022)