United States District Court, E.D. California
KENDALL J. NEWMAN JUDGE.
is a prisoner, proceeding without counsel, with a civil
rights action pursuant to 42 U.S.C. § 1983. Plaintiff is
incarcerated in the San Joaquin County Jail. On March 24,
2016, defendants filed a motion to dismiss. (ECF No. 19.) On
April 13, 2016, plaintiff filed a motion for an extension of
time to file an opposition or to postpone proceedings. (ECF
No. 20.) On April 29, 2016, plaintiff filed a motion for
appointment of counsel. (ECF No. 21.)
for Appointment of Counsel
courts lack authority to require counsel to represent
indigent prisoners in section 1983 cases. Mallard v.
United States Dist. Court, 490 U.S. 296, 298 (1989). In
exceptional circumstances, the court may request an attorney
to voluntarily represent such a plaintiff. See 28
U.S.C. § 1915(e)(1). Terrell v. Brewer, 935
F.2d 1015, 1017 (9th Cir. 1991); Wood v.
Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).
When determining whether “exceptional
circumstances” exist, the court must consider
plaintiff’s likelihood of success on the merits as well
as the ability of the plaintiff to articulate his claims pro
se in light of the complexity of the legal issues involved.
Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009)
(district court did not abuse discretion in declining to
appoint counsel). The burden of demonstrating exceptional
circumstances is on the plaintiff. Id.
motion for appointment of counsel, plaintiff alleges that he
is being denied law library access. Plaintiff also alleges
that he is being denied access to copy services. On June 2,
2016, pursuant to the All Writs Act, the undersigned directed
the San Joaquin County Sheriff to file a status report
addressing plaintiff’s access to the law library and
copy services. (ECF No. 22.)
15, 2016, the San Joaquin County Sheriff’s Office filed
a status report in response to the June 2, 2016 order. (ECF
No. 23.) Attached to the status report is a declaration by
Ramsey Abboushi, the law clerk in the County Jail Law
library. (ECF No. 23-1.) In the declaration, Ramsey Abboushi
states, in relevant part,
3. Relevant to the current Sheriff’s Status Report, I
am familiar with Plaintiff Joseph DiBartolomeo because of my
duties as a Law Clerk at the County Jail Law Library. He was
one of a few inmates that requested almost on a daily basis
material from the law library. My duties as law clerk
included that I review the requests made by inmates and
respond thereto by producing the law documents they
4. Attached hereto marked as Exhibit (“Exh”) A
are the requests filed by plaintiff DiBartolomeo to the
County Law Library from November 2014-May 2016. As evidenced
by the large number of requests in Ex. A, you will find that
plaintiff DiBartolomeo was constantly having access to the
law library. In my experience, this is an extraordinary
amount of requests compared to other inmates at the County
Jail. In fact, I usually spent about one hour per day working
solely on DiBartolomeo’s requests.
I also attach an Inmate Request Response, Exb. B, and a Legal
Materials Access form, Exh. C, which I send to all inmates
who ask for assistance.
5. As the Court can tell, some of the requests have a
notation indicating an answer or response was made. I am the
one that labeled that an answer or request was made on the
other documents in Exhibit A. When I made the notation that
an answer or response was made that meant that I provided to
DiBartolomeo the information he requested. Sometimes,
DiBartolomeo would file so many requests all at the same that
that I responded to him in bulk- meaning that I would respond
to two or three or more requests in one response. When I
would respond in bulk I would mark “answered” or
responded to on the top of the request and staple the stack
together. I will declare under penalty of perjury, however,
that I did respond to all of the requests that I received
that DiBartolomeo made that included a correct citation
number or chapter that was available through our services.
6. Furthermore, when DiBartolomeo requested copies of
material, I always provided copies in a timely manner.
7. An exception would occur when DiBartolomeo requested
office product like files, accordion folders, note pads,
pencils, etc., which were not always available. On the other
hand, if I had Office products to supply and DiBartolomeo
requested them, I would provide them so long as it was not in
my opinion, an abuse of the process - meaning the request was
reasonable and properly received.
8. The Court will note that I did meet and speak with Mr.
DiBartolomeo on several occasions. At those times, Mr.
DiBartolomeo would ask questions about the legal process,
however, I advised him that I could not answer legal
questions or give advice. I did tell him that he could put
his requests in writing and I would try to provide material
to address his questions. Such materials that I provided were
Federal Code of Civil Procedures, Federal Rules of Evidence,
Constitutional Outlines on Evidence, a Constitutional Law
outline and Rules of Court for State and Federal Court.
9. I am informed and believe that Mr. Bartolomeo contends
that he was denied access to the law library. Based upon my
duties as the Law Clerk for the period of 2014-2016, this
would be an inaccurate allegation that I would refute.
Rather, I believe that Mr. DiBartolomeo took advantage of the
law library ...