(PC) Bland v. Mossinger

[6] 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA [9] 10 JOSHUA DAVIS BLAND, No. 2:20-cv-00051 DAD SCR P 11 Plaintiff, 12 v. ORDER 13 MOSSINGER, et al., 14 Defendants. [15] 16 Plaintiff is a state prisoner proceeding pro se with a civil rights action under 42 U.S.C. § 17 1983. Before the undersigned is plaintiff’s motion for appointment of counsel (ECF No. 75), 18 styled as a request for reconsideration of the court’s prior order denying counsel (ECF No. 34). 19 Plaintiff has also filed a motion to compel the California Department of Corrections and 20 Rehabilitation (“CDCR”) and Kern Valley State Prison (“KVSP”) to allow him access to his legal 21 materials. (ECF No. 79). 22 PLAINTIFF’S MOTION TO APPOINT COUNSEL 23 I. Plaintiff’s Motion 24 Plaintiff requests the appointment of counsel to “safeguard his private rights, titles, and 25 interests.” (ECF No. 75 at 1.) Plaintiff frames his motion as a request for reconsideration of an 26 order dated November 29, 2021, in which Judge Barnes, the previously assigned magistrate 27 judge, denied plaintiff’s request for counsel “without prejudice to its renewal at a later stage of 28 the proceedings.” (ECF No. 34 at 2.) For support, plaintiff references a portion of that order in 1 which Judge Barnes questioned plaintiff’s ability to proceed pro se: 2 In the present case, the court does not find the required exceptional circumstances. Plaintiff’s arguments regarding sovereignty and his filings in this action indicate 3 that he is unable to articulate his claims pro se. Therefore, the court will deny the request for counsel without prejudice to its renewal at a later stage of the 4 proceedings. 5 (ECF No. 34 at 2). Plaintiff maintains that it being a “later of a stage of the proceedings” the 6 appointment of counsel is now warranted. (ECF No. 75 at 2.) 7 II. Legal Standard 8 District courts lack authority under 28 U.S.C. § 1915 to require counsel to represent 9 indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296 , 298 10 (1989). In exceptional circumstances, the court may request that an attorney voluntarily represent 11 such a plaintiff. See 28 U.S.C. § 1915 (e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 12 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). The test for exceptional 13 circumstances requires the court to evaluate the plaintiff’s likelihood of success on the merits and 14 the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal 15 issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Weygandt v. 16 Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances common to most prisoners, such as lack 17 of legal education and limited law library access, do not establish exceptional circumstances that 18 would warrant a request for voluntary assistance of counsel. Wood, 900 F.2d at 1335 ; Riley v. 19 Franke, 340 F. Supp. 3d 783, 787 (E.D. Wis. 2018). 20 Beyond § 1915(e)(1), other sources of law may implicate a request for counsel. For 21 example, appointed counsel may be required in a civil proceeding as an accommodation for a 22 litigant who is disabled. See Franco-Gonzalez v. Holder, No. 10-cv-02211 DMG (DTBx), 2013 23 WL 3674492 , at *3-*9 (C.D. Cal. Apr. 23, 2013) (granting summary judgment to class of 24 mentally disabled individuals in civil immigration proceedings on their request for appointed 25 representatives under the Rehabilitation Act). Due process may also require appointment of 26 counsel in certain proceedings. See Turner v. Rogers, 564 U.S. 431, 444-45 (2011) (analyzing 27 request for appointment of counsel in civil proceeding under the Mathews v. Eldridge, 424 U.S. 28 319 (1976), procedural due process framework). 1 III. Discussion 2 Plaintiff has not identified “new or different facts or circumstances” warranting 3 reconsideration of the previous order. See Local Rule 230(j); McCoy v. Stronach, 494 F. Supp. 4 3d 736, 739 (E.D. Cal. 2020) (“A party seeking reconsideration must show more than a 5 disagreement with the Court’s decision, and recapitulation of that which was already considered 6 by the Court in rendering its decision.”) (internal quotations omitted). Judge Barnes’ order 7 denying plaintiff’s request for counsel “without prejudice to its renewal at a later stage of the 8 proceedings” meant only that plaintiff could request counsel again. It did not guarantee plaintiff 9 counsel or excuse him from showing exceptional circumstances or some other justification for the 10 voluntary assistance of counsel. 11 Here, plaintiff has not identified any exceptional circumstances or other bases for the 12 appointment of counsel. His desire for counsel to “safeguard” his interests is a circumstance 13 common to most prisoners that does not warrant a request for voluntary assistance of counsel. 14 See Howard v. Hedgpeth, No. 08-CV-0859 RTB PCL, 2010 WL 1641087 , at *2 (E.D. Cal. Apr. 15 20, 2010) (“When determining whether to request counsel on behalf of an indigent plaintiff, the 16 relevant consideration is not one of convenience.”). The undersigned does share Judge Barnes’ 17 concerns regarding plaintiff’s repeated sovereignty filings. But at the same time, plaintiff has 18 shown an ability to research and articulate his excessive force claims throughout the proceedings, 19 particularly in opposing defendants’ efforts to dismiss the action as barred by Heck v. Humphrey, [20] 512 U.S. 477 (1994).1 (See, e.g., ECF No. 59.) So long as plaintiff can articulate his claims 21 against the relative complexity of the matter, the exceptional circumstances that may support the 22 appointment of counsel do not exist. See Terrell, 935 F.2d at 1017 . 23 Accordingly, plaintiff’s request for the appointment of counsel is denied. Given this is 24 plaintiff’s third motion to appoint counsel and undersigned finds plaintiff can articulate his claims 25 at trial, plaintiff’s motion is denied with prejudice. [26] 27 1 Defendants’ motion for reconsideration of District Judge Drozd’s order denying their motion to dismiss is still pending. (ECF No. 65.) [28] 1 PLAINTIFF’S MOTION TO COMPEL ACCESS TO LEGAL PAPERS 2 Plaintiff has also requested an order compelling CDCR and/or KVSP to allow him to 3 || access his legal papers, typewriters, and supplies pursuant to Gluth v. Kangas, 951 F.2d 1504 (9th 4 | Cir. 1991)? Plaintiff explains that he transferred to KVSP on May 9, 2025, and lacks access to 5 || these materials. (ECF No. 79 at 1-2.) In his pretrial statement dated May 14, 2025, plaintiff 6 || added that his typewriter is ADA-approved and that he has difficulty holding pens and pencils 7 || because of arthritis. (ECF No. 80 at 9.) 8 The undersigned is concerned that plaintiff may be unable to prosecute this action if he is 9 || denied access to the legal materials, particularly if, as alleged, those materials are approved 10 || accommodations for his physical disabilities. Accordingly, defendants’ counsel is directed to 11 | confer with the KVSP Litigation Coordinator and file a status report addressing plaintiffs 12 | motion. The status report shall be filed within fourteen days of the date of this order. 13 CONCLUSION 14 Accordingly, IT IS HEREBY ORDERED that: 15 1. Plaintiff's motion to appoint counsel and motion for reconsideration (ECF No. 79) 16 | is DENIED with prejudice 17 2. Plaintiff's motion to compel CDCR/KVSP to allow him access to his legal 18 || supplies (ECF No. 79) is GRANTED IN PART. Defendants’ counsel is directed to confer with 19 | the KVSP Litigation Coordinator and, within fourteen days of the date of this order, file a status 20 | report addressing plaintiffs motion. 21 | DATED: August 1, 2025 °3 SEAN C. RIORDAN 24 UNITED STATES MAGISTRATE JUDGE [25] 26 2 In Gluth, the Ninth Circuit affirmed the lower court’s ruling that the prison’s indigency policy, 27 | which did not allow inmates to purchase required hygiene supplies as well as the legal supplies necessary to litigate their claims, was “inconsistent” with the fundamental constitutional right of 28 || access to the courts. Id. at 1508-09 .