United States District Court, S.D. California
ORDER: (1) DENYING MOTION TO APPOINT COUNSEL [ECF NO.
11] AND (2) DENYING MOTION FOR LIBRARY ACCESS [ECF NOS. 13,
Bernard G. Skomal United States Magistrate Judge
Leroye Jefferson (“Plaintiff”), a state prisoner
proceeding pro se, has filed this civil rights action seeking
relief pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Before
the Court are Plaintiff's Motion to Appoint Counsel (ECF
No. 11) and Motions for Library Access (ECF Nos. 13,
For the reasons set forth below, the Motions are
MOTION TO APPOINT COUNSEL
first asks the Court to grant his Motion to Appoint Counsel
(ECF No. 11). This is Plaintiff's second request for the
appointment of counsel. (See ECF No. 5 [motion to
appoint counsel]; ECF No. 8 [denying first request to appoint
stated in the Order denying Plaintiff's initial Motion to
Appoint Counsel (ECF No. 8 at 4), there is no constitutional
right to counsel in a civil case. Lassiter v. Dep 't
of Social Servs., 452 U.S. 18, 25 (1981); Palmer v.
Valdez, 560 F.3d 965, 970 (9th Cir. 2009). While a
district court has limited discretion under 28 U.S.C. §
1915(e)(1) to “request” that an attorney
represent an indigent civil litigant, Agyeman v. Corr.
Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004),
it may exercise that discretion only under “exceptional
circumstances.” Id.; see also Terrell v.
Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). Determining
whether such “exceptional circumstances” exist
requires consideration of the Plaintiff's
“likelihood of success on the merits” as well as
whether he “is unable to articulate his claims in light
of the complexity of the issues involved.”
Harrington v. Scribner, 785 F.3d 1299, 1309 (9th
first Motion to Appoint Counsel, Plaintiff requested the
appointment of counsel because he is indigent, “nearly
slightly blind”, “sick with HIV” and
“lack[s] knowledge of the legal system.” (ECF No.
5.) In the instant motion, Plaintiff seeks appointed counsel
for the same reasons: he is indigent, has “very little
knowledge in legal paperwork, ” has “narrow to
near blind” vision, and is HIV positive. (ECF No. 11 at
2.) He has not asserted any new facts establishing the
“exceptional circumstances” necessary to warrant
appointment of counsel. (See ECF No. 8 at 4.)
Nothing in his filings since the denial of his first motion
to appoint counsel indicate that he is unable to articulate
his claims. Further, as this case remains in the initial
pleadings stage, Plaintiff has not yet shown a likelihood of
success on the merits.
as Plaintiff has not asserted any new facts that would merit
the Court's discretionary appointment of counsel, his
Motion to Appoint Counsel (ECF No. 11) is
DENIED without prejudice.
MOTIONS FOR LIBRARY ACCESS
also asks the Court to grant his Motions for Library Access
to provide him with Priority Legal User
(“P.L.U.”) status entitling him to obtain
priority access and use of the prison law library due to his
job and chemotherapy schedules. (ECF Nos. 13, 19.) He states
that because he can “show court legal documents”,
“he is entitled to P.L.U.” status. (ECF No. 19 at
1.) Additionally, he acknowledges per the California Code of
Regulations, an inmate is to “receive P.L.U. status
within 30 days of his established court deadline.”
Supreme Court has found that, “the fundamental
constitutional right of access to the courts requires prison
authorities to assist inmates in the preparation and filing
of meaningful legal papers by providing prisoners with
adequate law libraries or adequate assistance from persons
trained in the law.” Lewis v. Casey, 518 U.S.
343, 346 (1996) (quoting Bounds v. Smith, 430 U.S.
817, 828 (1977)). In order to successfully assert a
Bounds violation, an inmate must satisfy the
requirement of standing and demonstrate an actual injury.
Lewis, 518 U.S. at 349 (citing Allen v.
Wright, 468 U.S. 737, 750-52 (1984)). In asserting a
Bounds violation, the injury must be related to the
established right to access the courts; mere physical access
to libraries in itself is not a right. Lewis, 518
U.S. at 350-51. Thus, an inmate must show that his inability
to access an adequate legal library or services
“hindered his efforts to pursue a legal claim.”
Id. at 351. This right however is not absolute and
prison administrators are only required to provide reasonable
access to library facilities. Toussaint v. McCarthy,
801 F.2d 1080, 1109 (9th Cir. 1986).
to California Code of Regulations, Title 15, inmates may
apply for Priority Legal User (“P.L.U.”) status
if they have an “established court deadline” by
completing and signing a California Department of Corrections
and Rehabilitation (“CDCR”) Form 2171 Priority
Library User (P.L.U.) Request and Declaration. Cal. Code
Regs. tit. 15, § 3122. An established court deadline may
be either a court imposed deadline for an active case or a
statutory deadline. Id.
to 42 U.S.C. § 1997e(a), an inmate must first exhaust
all administrative remedies before contesting any condition
of confinement. Rios v. Tilton, No. 2:07-CV-00790,
2010 WL 2557191 (E.D. Cal. June 21, 2010) (order denying
motion for P.L.U. status based on inability to show
administrative relief was exhausted).
the Supreme Court has warned against federal courts becoming
“enmeshed in the minutiae of prison operations.”
Lewis, 518 U.S. at 362 (quoting Bell v. Wolfish, 441
U.S. 520, 562 (1979)). While a court can provide injunctive
relief to ensure the protection of an inmate's
constitutional rights, the state has broad discretion ...