Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kent v. U.C. Davis Medical Center

United States District Court, E.D. California

August 9, 2016

RONALD KENT Plaintiff,
v.
U.C. DAVIS MEDICAL CENTER, et al., Defendants.

          ORDER

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE

         Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and has requested leave to proceed in forma pauperis (ECF No. 2) and appointment of counsel (ECF No. 7). Plaintiff has also filed a motion to compel (ECF No. 8), two motions for modification of sentence (ECF Nos. 10, 16), and an opposition to a motion for summary judgment (ECF No. 13). This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

         I. Application to Proceed In Forma Pauperis

         Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). ECF No. 2. Accordingly, the request to proceed in forma pauperis will be granted.

         Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

         II. Request for Appointment of Counsel

         The United States Supreme Court has ruled that district courts lack authority to require counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the voluntary assistance of counsel pursuant to 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, a 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 issues involved.’” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances 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.

         Plaintiff requests counsel on the grounds that he his incarceration inhibits his ability to litigate this case, he has limited access to the law library, he has limited knowledge of the law, and an attorney would be better able to present his case. ECF No. 7 at 2. These circumstances are common to most prisoners and are therefore not exceptional. Moreover, the complaint is being dismissed with leave to amend, so at this time the court is unable to determine plaintiff’s likelihood of success on the merits or whether plaintiff has a cognizable claim. For these reasons, plaintiff’s request for counsel will be denied at this time.

         III. Miscellaneous Filings

         Plaintiff has filed a motion to compel (ECF No. 8), two motions to modify his sentence (ECF Nos. 10, 16), and a response to a motion for summary judgment (ECF No. 13).

         Defendants in this case have not been served and the court has not set a schedule for discovery. Plaintiff’s motion to compel is therefore premature and will be denied.

         Plaintiff’s two motions to modify his sentence will be stricken from the record and returned to plaintiff. The instant action is a civil rights claim for deliberate indifference to plaintiff’s serious medical needs. A modified criminal sentence is not an available remedy in a civil rights action. If plaintiff wants to pursue habeas relief, he must do it in a separate action. Additionally, although both motions are labeled with the case number for this action, they are captioned for the Sacramento County Superior Court, indicating that the motions may have been sent to this court by mistake.

         Finally, plaintiff’s opposition to defendants’ motion for summary judgment will also be stricken from the record and returned to plaintiff. As noted above, no defendants have been served in this case, meaning no defendants have filed a motion for summary judgment in ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.