United States District Court, E.D. California
ISDEBORAH BARNES UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding pro se and in forma pauperis
with an action under 42 U.S.C. § 1983. Plaintiff alleges
defendants violated his Eighth Amendment rights by subjecting
him to inhumane conditions of confinement and retaliated
against him for exercising his First Amendment rights.
Currently pending before the court are: (1) plaintiff's
requests for copies and for the appointment of counsel; (2)
defendants' motion for summary judgment; and (3)
defendants' motion to strike plaintiff's sur-replies.
Below the court addresses the first and third motions.
Defendants' motion for summary judgment will be addressed
at a later date.
requests for copies, plaintiff states that he did not receive
a copy of this court's April 2, 2019 findings and
recommendations. In addition, plaintiff asks for a copy of
the transcript of the October 2018 evidentiary hearing on
exhaustion issues. (ECF Nos. 127, 138.) The court will order
the Clerk to serve the April 2 findings and recommendations
respect to the transcript, plaintiff is advised that the
clerk does not ordinarily provide free copies of case
documents to parties. In forma pauperis status does not
include the cost of copies. The Clerk's Office will
provide copies of documents and of the docket sheet at $0.50
per page. Checks in the exact amount are made payable to
"Clerk, USDC." Copies of documents in cases may
also be obtained by printing from the public terminals at the
Clerk's Office or by contacting Cal Legal Support Group
at: 3104 "O" Street, Suite 291, Sacramento, CA
95816, phone 916-441-4396, fax 916-400-4948. Finally, the
court notes that Mr. Thorn, who was previously appointed as
counsel for plaintiff in this case, ordered a copy of the
transcript of the evidentiary hearing and may be able to
provide plaintiff with a copy.
FOR THE APPOINTMENT OF COUNSEL
requests the appointment of counsel. (ECF No. 127.) 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).
test for exceptional circumstances requires the court to
evaluate the plaintiff's 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. See Wilborn v. Escalderon, 789 F.2d 1328,
1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d
952, 954 (9th Cir. 1983). 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. In the present case, the court does not find the
required exceptional circumstances at this time.
argue that plaintiff's two exhibits and his sur-reply,
all filed here after defendants submitted their September 13
reply brief to the motion for summary judgment, should be
stricken. (ECF No. 148.) First, plaintiff's September 16
filing is not a “sur-reply.” Under the mailbox
rule, prisoner's filings are deemed “filed”
on the date the prisoner submits them to the prison for
mailing. See Houston v. Lack, 487 U.S. 266, 270
(1988); Douglas v. Noelle, 567 F.3d 1103, 1107 (9th
Cir. 2009). Plaintiff's September 16 filing shows that he
submitted it to prison officials for mailing on September 11,
before defendants filed their reply brief. (ECF No. 144 at
5.) Therefore, that filing is not technically a
“sur-reply” because it was not filed in response
to defendants' reply brief.
plaintiff's September 16 filing (ECF No. 144) and October
10 filing (ECF No. 147) are both attempts to submit exhibits
in support of plaintiff's opposition to summary judgment.
The court recognizes that prisoners' ability to obtain
signed copies of documents from those both inside and outside
the prison can be difficult and time-consuming. Therefore,
the court will allow these two filings to be considered as
part of plaintiff's opposition to the motion for summary
judgment. However, the court also recognizes that defendants
did not have an opportunity to respond to these exhibits.
Accordingly, defendants will be permitted the opportunity to
file an addendum to their reply brief to address these two
plaintiff did submit a sur-reply brief in response to
defendants' reply brief. (ECF No. 145.) There is no
provision in the local rules or in the Federal Rules of Civil
Procedure that allows the non-moving party to file a reply,
response, or sur-reply without a court order. Plaintiff's
September 23, 2019 sur-reply is therefore unauthorized and
will be stricken.
foregoing reasons, and good cause appearing, IT IS HEREBY
ORDERED as follows:
Attorney Douglas Thorn was appointed solely for the purpose
of representing plaintiff through the evidentiary hearing and
subsequent briefing on the issue of exhaustion. That issue
has now been resolved. Accordingly, the Clerk of the Court
shall remove Mr. Thorn from the ...