United States District Court, E.D. California
RICHARD M. SANSONE, Plaintiff
J. C. THOMAS, et. al., Defendants.
ORDER DENYING MOTION FOR SANCTIONS AND MOTION FOR
APPOINTMENT OF COUNSEL (DOC. NO. 40.)
Richard M. Sansone is a state prisoner proceeding pro
se and in forma pauperis in this civil rights
action brought pursuant to 42 U.S.C. § 1983. (Doc. No.
4.) Defendant Thomas declined magistrate judge jurisdiction
over this action for all purposes, and this matter was
therefore referred to a United States Magistrate Judge
pursuant to 28 U.S.C. § 636(1)(B) and Local Rule 302.
(Doc. No. 17.) This action is currently proceeding on
plaintiff’s First Amended Complaint
(“FAC”), filed on November 13, 2014, against
defendants Thomas and John Doe #1 for use of excessive force
in violation of the Eighth Amendment. (Doc. No. 27.)
June 10, 2016, plaintiff filed a motion seeking the
imposition of sanctions and a motion for appointment of
counsel. (Doc. No. 40.) Plaintiff directs his motion directly
to the undersigned as the district judge assigned to this
action. (Id.) Defendant Thomas filed an opposition
to the motion for sanctions on June 30, 2016. (Doc. No. 50.)
Motion for Sanctions
requests the imposition of sanctions on defendant Thomas for
failing to comply with the assigned magistrate judge’s
order issued on May 9, 2016. (Doc. No. 37.) That order
required defendant Thomas to file an answer or other pleading
responsive to plaintiff’s FAC within thirty days of the
date of service of the order. (Id.)
Plaintiff argues in his motion for sanctions that defendant
Thomas did not file an answer within the thirty day time
period provided and should be sanctioned accordingly.
motion for sanctions will be denied because defendant Thomas
filed an answer within the thirty day time period required by
the magistrate judge’s order. (Doc. No. 39.) The order
was filed and served on May 9, 2016. (Doc. No. 37.)
Defendant Thomas filed an answer to the FAC on June 6, 2016,
which was within thirty days of the date of service of the
Motion for Appointment of Counsel
requests appointment of counsel by the court. (Doc. No. 40,
at 2.) District courts lack authority to require counsel to
represent indigent prisoners in § 1983 cases.
Mallard v. U.S. Dist. Court for the S. Dist. of
Iowa, 490 U.S. 296 (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 the
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 issued involved.
Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).
argues that he cannot adequately litigate this case without
counsel because all of his personal property was lost when he
was transferred to Pelican Bay State Prison. (Doc. No. 40, at
1.) He explains that the lost personal property included all
of his legal work pertaining to this case, his Federal Rules
of Civil Procedure, the Local Rules, and Black’s Law
Dictionary. (Id.) Plaintiff also claims that he has
no access to the law library or the regular library at his
institution of confinement. (Id.) The court is
sympathetic to plaintiff’s situation regarding his lost
property. Nonetheless, “[c]ircumstances common to most
prisoners, such as lack of legal education and limited law
library access, do not establish exceptional circumstances
that would warrant a request for voluntary assistance of
counsel.” West v. Dizon, No. 2:12-cv-1293 DAD
P., 2014 WL 114659, *4 (E.D. Cal. Jan. 9, 2014). The court
concludes that at this time there are no exceptional
circumstances present in this case requiring the appointment
of counsel on plaintiffs behalf. His motion seeking the
appointment of counsel will therefore be denied without
based upon the foregoing:
1. Plaintiffs motion for sanctions (Doc. No. 40), is denied;
2. Plaintiff s motion for appointment of counsel (Doc. No.
40), is denied without prejudice.