1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JUAN CARLOS CALDERON, No. 2:26-cv-00611 SCR P 12 Plaintiff, 13 v. ORDER and 14 JUAN CHAVEZ, et al., FINDINGS & RECOMMENDATIONS 15 Defendants. 16 17 Plaintiff is incarcerated in state prison and proceeding pro se with a civil rights action 18 under 42 U.S.C. § 1983. This proceeding was referred to the undersigned by operation of Local 19 Rule 302 and 28 U.S.C. § 636(b)(1). 20 IN FORMA PAUPERIS 21 Plaintiff initiated the action by filing a complaint on February 26, 2026. ECF No. 1. He 22 also sought leave to proceed in forma pauperis. ECF No. 2. The in forma pauperis statute 23 provides that: 24 In no event shall a prisoner bring a civil action . . . [in forma pauperis] if the prisoner has, on 3 or more prior occasions, while incarcerated 25 or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is 26 frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 27 physical injury. 28 28 U.S.C. § 1915(g). A review of court records shows that plaintiff has been determined a “three- 1 strikes litigant” pursuant to this provision. Calderon v. Covello, No. 2:24-cv-1309 CKD P, 2024 2 WL 4462335 (E.D. Cal. Sept. 4, 2024), report and recommendation adopted, No. 2:24-cv-1309 3 DJC CKD P, 2024 WL 4574119 (E.D. Cal. Oct. 24, 2024). Plaintiff is therefore precluded from 4 proceeding in forma pauperis in this action unless he is “under imminent danger of serious 5 physical injury.” 28 U.S.C. § 1915(g). 6 The “imminent danger” exception applies at the time of filing the complaint. Andrews v. 7 Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) (emphasizing that “it is the circumstances at the 8 time of the filing of the complaint that matters for purposes of the ‘imminent danger’ exception to 9 § 1915(g)”). A prisoner’s complaint can demonstrate “imminent danger” by alleging “an ongoing 10 danger.” Id. at 1056–57 (holding that “a prisoner who alleges that prison officials continue[d] 11 with a practice that has injured him or others similarly situated in the past will satisfy the 12 ‘ongoing danger’ standard”); see also Williams v. Paramo, 775 F.3d 1182, 1190 (9th Cir. 2015) 13 (“[A] prisoner subject to the three-strikes provision may meet the imminent danger exception and 14 proceed in forma pauperis on appeal if he alleges an ongoing danger at the time the notice of 15 appeal is filed.”). 16 Plaintiff’s prolific, 67-page complaint names as defendants multiple Mule Creek State 17 Prison (“MCSP”) employees whom plaintiff alleges set him up to be sexually and physically 18 abused by other violent inmates throughout 2022-2025. ECF No. 1 at 6-12. Although these 19 allegations are serious, they do not constitute “imminent dangers” under Andrews because 20 petitioner was incarcerated at a different state prison, the R.J. Donovan Correction Facility, at the 21 time he filed the complaint. Id. at 1; see also Docket. Further, upon close review, many of the 22 factual allegations are fantastical. For example, plaintiff alleges that defendants used “chemicals 23 or toxic substances” on his belongings and through the air system to control his judgement.1 ECF 24 No. 1 at 5, ¶ 5. 25
26 1 In an abundance of caution, the undersigned also reviewed the “Memorandum of Law” attached to the complaint that references 28 U.S.C. § 1915(g). ECF No. 1 at 39-62. The memorandum 27 also does not identify a threat of imminent danger present at the time plaintiff filed this action, instead describing various incidents between 2021 and 2025 and citing various court decisions 28 regarding the Eighth Amendment deliberate indifference doctrine. See id. at 42-46. 1 Accordingly, in light of plaintiff’s prior strikes and the lack of alleged imminent danger at 2 the time this complaint was filed, the undersigned recommends requiring plaintiff to pay the 3 entire filing fee within a period of 30 days or face dismissal of the present action. 4 MOTION TO APPOINT COUNSEL 5 Plaintiff also filed a motion for the appointment of counsel under 28 U.S.C. § 1915. ECF 6 No. 3. Plaintiff states that he has multiple pending civil rights lawsuits and petitions for writ of 7 habeas corpus, but courts and judges have denied relief based on procedural issues and court rules 8 (presumably a reference to plaintiff’s status as a “three-strikes litigant). Id. at 1. Plaintiff states 9 that he has “mental/learning/language” disabilities, a lack of experience in litigation, ill health, 10 and inadequate access to the law library, and alludes to difficulties he has faced litigating one of 11 his civil rights cases pending in this judicial district, Calderon v. Covello et al., Case No. 2:23-cv- 12 2049 WBS CSK (E.D. Cal.). Id. 13 District courts lack authority under 28 U.S.C. § 1915 to require counsel to represent 14 indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 15 (1989). In exceptional circumstances, the court may request that an attorney voluntarily represent 16 such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 17 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). The test for exceptional 18 circumstances requires the court to evaluate the plaintiff’s likelihood of success on the merits and 19 the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal 20 issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Weygandt v. 21 Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances common to most prisoners, such as lack 22 of legal education and limited law library access, do not establish exceptional circumstances that 23 would warrant a request for voluntary assistance of counsel. Wood, 900 F.2d at 1335; Riley v. 24 Franke, 340 F. Supp. 3d 783, 787 (E.D. Wis. 2018). 25 Beyond § 1915(e)(1), other sources of law may implicate a request for counsel. For 26 example, appointed counsel may be required in a civil proceeding as an accommodation for a 27 litigant who is disabled. See Franco-Gonzalez v. Holder, No. 10-cv-02211 DMG (DTBx), 2013 28 WL 3674492, at *3-*9 (C.D. Cal. Apr.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JUAN CARLOS CALDERON, No. 2:26-cv-00611 SCR P 12 Plaintiff, 13 v. ORDER and 14 JUAN CHAVEZ, et al., FINDINGS & RECOMMENDATIONS 15 Defendants. 16 17 Plaintiff is incarcerated in state prison and proceeding pro se with a civil rights action 18 under 42 U.S.C. § 1983. This proceeding was referred to the undersigned by operation of Local 19 Rule 302 and 28 U.S.C. § 636(b)(1). 20 IN FORMA PAUPERIS 21 Plaintiff initiated the action by filing a complaint on February 26, 2026. ECF No. 1. He 22 also sought leave to proceed in forma pauperis. ECF No. 2. The in forma pauperis statute 23 provides that: 24 In no event shall a prisoner bring a civil action . . . [in forma pauperis] if the prisoner has, on 3 or more prior occasions, while incarcerated 25 or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is 26 frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 27 physical injury. 28 28 U.S.C. § 1915(g). A review of court records shows that plaintiff has been determined a “three- 1 strikes litigant” pursuant to this provision. Calderon v. Covello, No. 2:24-cv-1309 CKD P, 2024 2 WL 4462335 (E.D. Cal. Sept. 4, 2024), report and recommendation adopted, No. 2:24-cv-1309 3 DJC CKD P, 2024 WL 4574119 (E.D. Cal. Oct. 24, 2024). Plaintiff is therefore precluded from 4 proceeding in forma pauperis in this action unless he is “under imminent danger of serious 5 physical injury.” 28 U.S.C. § 1915(g). 6 The “imminent danger” exception applies at the time of filing the complaint. Andrews v. 7 Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) (emphasizing that “it is the circumstances at the 8 time of the filing of the complaint that matters for purposes of the ‘imminent danger’ exception to 9 § 1915(g)”). A prisoner’s complaint can demonstrate “imminent danger” by alleging “an ongoing 10 danger.” Id. at 1056–57 (holding that “a prisoner who alleges that prison officials continue[d] 11 with a practice that has injured him or others similarly situated in the past will satisfy the 12 ‘ongoing danger’ standard”); see also Williams v. Paramo, 775 F.3d 1182, 1190 (9th Cir. 2015) 13 (“[A] prisoner subject to the three-strikes provision may meet the imminent danger exception and 14 proceed in forma pauperis on appeal if he alleges an ongoing danger at the time the notice of 15 appeal is filed.”). 16 Plaintiff’s prolific, 67-page complaint names as defendants multiple Mule Creek State 17 Prison (“MCSP”) employees whom plaintiff alleges set him up to be sexually and physically 18 abused by other violent inmates throughout 2022-2025. ECF No. 1 at 6-12. Although these 19 allegations are serious, they do not constitute “imminent dangers” under Andrews because 20 petitioner was incarcerated at a different state prison, the R.J. Donovan Correction Facility, at the 21 time he filed the complaint. Id. at 1; see also Docket. Further, upon close review, many of the 22 factual allegations are fantastical. For example, plaintiff alleges that defendants used “chemicals 23 or toxic substances” on his belongings and through the air system to control his judgement.1 ECF 24 No. 1 at 5, ¶ 5. 25
26 1 In an abundance of caution, the undersigned also reviewed the “Memorandum of Law” attached to the complaint that references 28 U.S.C. § 1915(g). ECF No. 1 at 39-62. The memorandum 27 also does not identify a threat of imminent danger present at the time plaintiff filed this action, instead describing various incidents between 2021 and 2025 and citing various court decisions 28 regarding the Eighth Amendment deliberate indifference doctrine. See id. at 42-46. 1 Accordingly, in light of plaintiff’s prior strikes and the lack of alleged imminent danger at 2 the time this complaint was filed, the undersigned recommends requiring plaintiff to pay the 3 entire filing fee within a period of 30 days or face dismissal of the present action. 4 MOTION TO APPOINT COUNSEL 5 Plaintiff also filed a motion for the appointment of counsel under 28 U.S.C. § 1915. ECF 6 No. 3. Plaintiff states that he has multiple pending civil rights lawsuits and petitions for writ of 7 habeas corpus, but courts and judges have denied relief based on procedural issues and court rules 8 (presumably a reference to plaintiff’s status as a “three-strikes litigant). Id. at 1. Plaintiff states 9 that he has “mental/learning/language” disabilities, a lack of experience in litigation, ill health, 10 and inadequate access to the law library, and alludes to difficulties he has faced litigating one of 11 his civil rights cases pending in this judicial district, Calderon v. Covello et al., Case No. 2:23-cv- 12 2049 WBS CSK (E.D. Cal.). Id. 13 District courts lack authority under 28 U.S.C. § 1915 to require counsel to represent 14 indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 15 (1989). In exceptional circumstances, the court may request that an attorney voluntarily represent 16 such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 17 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). The test for exceptional 18 circumstances requires the court to evaluate the plaintiff’s likelihood of success on the merits and 19 the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal 20 issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Weygandt v. 21 Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances common to most prisoners, such as lack 22 of legal education and limited law library access, do not establish exceptional circumstances that 23 would warrant a request for voluntary assistance of counsel. Wood, 900 F.2d at 1335; Riley v. 24 Franke, 340 F. Supp. 3d 783, 787 (E.D. Wis. 2018). 25 Beyond § 1915(e)(1), other sources of law may implicate a request for counsel. For 26 example, appointed counsel may be required in a civil proceeding as an accommodation for a 27 litigant who is disabled. See Franco-Gonzalez v. Holder, No. 10-cv-02211 DMG (DTBx), 2013 28 WL 3674492, at *3-*9 (C.D. Cal. Apr. 23, 2013) (granting summary judgment to class of 1 mentally disabled individuals in civil immigration proceedings on their request for appointed 2 representatives under the Rehabilitation Act). Due process may also require appointment of 3 counsel in certain proceedings. See Turner v. Rogers, 564 U.S. 431, 444-45 (2011) (analyzing 4 request for appointment of counsel in civil proceeding under the Mathews v. Eldridge, 424 U.S. 5 319 (1976), procedural due process framework). 6 Plaintiff has not demonstrated any exceptional circumstances warranting appointment of 7 counsel in this particular action.2 His lack of legal education and limited law library access is a 8 barrier common to most incarcerated persons and do not establish exceptional circumstances here. 9 Plaintiff briefly references that he has disabilities and a medical illness that the undersigned finds 10 could impact the analysis here, but plaintiff does not provide any additional factual details. The 11 undersigned will deny the motion without prejudice, meaning that plaintiff can refile at a later 12 time after he has paid the required filing fee for this action. 13 CONCLUSION 14 Accordingly, it is HEREBY ORDERED that: 15 1. Plaintiff’s motion for appointment of counsel (ECF No. 3) is DENIED without 16 prejudice; and 17 2. The Clerk of the Court is directed to randomly assign a District Judge to this 18 matter. 19 In addition, IT IS HEREBY RECOMMENDED that: 20 1. Plaintiff’s motion to proceed in forma pauperis be denied; and 21 2. Plaintiff be ordered to pay the entire $405.00 in filing fees within thirty days of 22 any order adopting these findings and recommendations or face dismissal of the case. 23 These findings and recommendations are submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 25
26 2 It appears to the undersigned, based on the incorrect caption (ECF No. 3 at 1) and the fact the motion is addressed to the Ninth Circuit Court of Appeals (id. at 2), that plaintiff reused the 27 motion from another action. While this will not prevent the undersigned from resolving the motion on its merits, it is evidence that plaintiff has not attempted to demonstrate exceptional 28 circumstances warranting the appointment of counsel that are specific to this particular action. 1 | after being served with these findings and recommendations, any party may file written 2 || objections with the court and serve a copy on all parties. Such a document should be captioned 3 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 4 || objections shall be served and filed within fourteen days after service of the objections. The 5 || parties are advised that failure to file objections within the specified time may waive the right to 6 || appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 7 || DATED: March 19, 2026 8
10 SEAN C. RIORDAN UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28