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Irving C. Humphrey v. James A. Yates

December 3, 2010

IRVING C. HUMPHREY,
PLAINTIFF,
v.
JAMES A. YATES, WARDEN,
DEFENDANT.



The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

ORDER DENYING MOTION FOR THE APPOINTMENT OF COUNSEL ORDER GRANTING MOTION FOR A U T H O R I Z A T I O N T O O B T A I N DECLARATIONS (Docs. 37 & 38)

Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has two motions currently pending before the Court: (1) a motion for the appointment of counsel; and (2) a motion seeking authorization to obtain declarations from witnesses incarcerated in other prison facilities. (Docs. 37 & 38.)

I. Motion for Appointment of Counsel

Plaintiff is advised that he does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and that the Court cannot require an attorney to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances, the Court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. In determining whether "exceptional circumstances exist, a district court must evaluate both the likelihood of success on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues involved." Id. (internal quotations and citations omitted).

In the present case, the Court does not find the required exceptional circumstances. Even if it is assumed that Plaintiff is not well-versed in the law and that he has made serious allegations which, if proved, would entitle him to relief, his case is not exceptional. This Court is faced with similar cases almost daily. Without a reasonable method of securing and compensating counsel, the Court will seek volunteer counsel only in the most serious and exceptional cases. Further, at this early stage in the proceedings, the Court cannot make a determination that Plaintiff is likely to succeed on the merits. And, based on a review of the record in this case, the Court does not find that Plaintiff is unable to adequately articulate his claims. Accordingly, Plaintiff's motion for the appointment of counsel will be denied.

II. Motion for Authorization to Obtain Declarations

Plaintiff seeks to obtain declarations from three witnesses who are located at different prison facilities: (1) Santos Peinado Jr.; (2) Lawson Beavers; and (3) John D. Espinoza. Plaintiff explains that in order to send correspondence between inmates at different prison facilities, he must submit, and have approved, a formal request to the wardens of the relevant prison facilities. See Cal. Code of Regs., tit. 15, § 3139. Plaintiff expresses concern, however, that his requests will not be timely approved given the fact that California Code of Regulations, Title 15, Section 3139 does not impose a time constraint upon a warden's decision. Plaintiff also fears that the sole defendant to this action, the warden of Plaintiff's current prison facility, will engage in dilatory tactics. Accordingly, Plaintiff requests the Court ensure that his inter-prison communications and declaration requests are approved.

Pursuant to the Court's discovery and scheduling order issued April 21, 2010, discovery will soon close in this matter on December 21, 2010, and the deadline for dispositive motions will expire on February 28, 2011. In the interest of preventing any further delay in the resolution of this case, the Court will grant Plaintiff's motion to the extent he seeks assistance in obtaining a timely decision on his inter-prison communication requests. The Court will issue a letter, on Plaintiff's behalf, to all the relevant parties regarding this matter.

III. Conclusion

In accordance with the above, it is HEREBY ORDERED that:

1. Plaintiff's December 2, 2010 motion for the appointment of counsel (Doc. 37) is denied;

2. Plaintiff's December 2, 2010 motion for authorization to obtain declarations (Doc. 38) is granted to the extent that Plaintiff seeks Court assistance in obtaining timely consideration of his inter-prison communication requests with inmates Santos Peinado, Jr., Lawson Beavers, and John D. Espinoza. Plaintiff is directed to submit his declarations and inter-prison communication requests in accordance with California Code of Regulations, Title 15, Section 3139, if he has not done so already; and

3. The Clerk of the Court is directed to mail a copy of this order, including the letter attached below, to ...


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