Markkis Porsche Sonier v. M. Singh, et al.

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 MARKKIS PORSCHE SONIER, No. 2:24-cv-02511 SCR 11 Plaintiff, 12 v. ORDER 13 M. SINGH, et al., 14 Defendants. 15 16 Plaintiff is incarcerated in federal prison and proceeding pro se with a civil rights 17 complaint pursuant to 42 U.S.C. § 1983. Pending before the undersigned are plaintiff’s motion 18 for leave to amend (ECF No. 22) and motion for appointment of pro bono counsel (ECF No. 16). 19 MOTION FOR LEAVE TO AMEND 20 Plaintiff seeks leave to amend his complaint to add claims under Title II of the Americans 21 with Disabilities Act, 42 U.S.C. § 12131, et seq., and the Eighth Amendment. ECF No. 22. 22 Plaintiff also submitted his proposed first amended complaint (“FAC”) as an attachment to his 23 motion, which the Clerk filed on the docket. No. 23. Defendants do not oppose plaintiff’s 24 motion to amend but ask the Court to screen the FAC pursuant to 28 U.S.C. § 1915A. Plaintiff 25 did not file a reply. 26 Based on defendants’ non-opposition, the undersigned grants plaintiff’s motion for leave 27 to amend. Fed. R. Civ. P. 15(a)(2) (party may amend its pleading “with the opposing party’s 28 written consent or the court’s leave”). The undersigned will screen plaintiff’s FAC (ECF No. 23) 1 for cognizable claims under 28 U.S.C. § 1915A in due course. By this order, the undersigned will 2 also stay defendants’ obligation to file a responsive pleading pending screening of the FAC. 3 MOTION FOR APPOINTMENT OF PRO BONO COUNSEL 4 Plaintiff has also filed a motion for appointment of pro bono counsel on account of his 5 disabilities. Plaintiff explains that he has an individualized education program (IEP) on file1 and 6 has post-traumatic stress disorder (PTSD) from the incident in his original complaint. ECF No. 7 16 at 1. Plaintiff also states that he fears retaliation from prison staff. Id. 8 District courts lack authority under 28 U.S.C. § 1915 to require counsel to represent 9 indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 10 (1989). In exceptional circumstances, the court may request that an attorney voluntarily represent 11 such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 12 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). The test for exceptional 13 circumstances requires the court to evaluate the plaintiff’s likelihood of success on the merits and 14 the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal 15 issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Weygandt v. 16 Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances common to most prisoners, such as lack 17 of legal education and limited law library access, do not establish exceptional circumstances that 18 would warrant a request for voluntary assistance of counsel. Wood, 900 F.2d at 1335; Riley v. 19 Franke, 340 F. Supp. 3d 783, 787 (E.D. Wis. 2018). 20 Beyond § 1915(e)(1), other sources of law may implicate a request for counsel. For 21 example, appointed counsel may be required in a civil proceeding as an accommodation for a 22 litigant who is disabled. See Franco-Gonzalez v. Holder, No. 10-cv-02211 DMG (DTBx), 2013 23 WL 3674492, at *3-*9 (C.D. Cal. Apr. 23, 2013) (granting summary judgment to class of 24 1 An IEP is a “comprehensive plan” that sets out the “means by which special education and 25 related services are ‘tailored to the unique needs’ of a particular child” pursuant to the Individuals 26 with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400 et seq. Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 580 U.S. 386, 391 (2017) (quoting Bd. of Educ. of Hendrick 27 Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458 U.S. 176, 181 (1982)); see also 20 U.S.C. § 1401(14) (“‘IEP’ means a written statement for each child with a disability that is 28 developed, reviewed, and revised in accordance with” IDEA procedures). 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 established exceptional circumstances warranting appointment of counsel 7 || under 28 U.S.C. § 1915. It is too early in the proceeding to gauge plaintiff's likelihood of success 8 | on the merits, and plaintiff has to date demonstrated an ability to articulate his claims pro se and 9 || navigate procedural rules (as evidenced by his motion to amend). A litigant’s disabilities could 10 | warrant the appointment of counsel as an accommodation in rare cases, but here plaintiff has not 11 | explained in any detail how his disabilities impede his “meaningful access to the court.” Franco- 12 | Gonzalez, 2013 WL 3674492, at *4; see also Mark H. v. Hamamoto, 620 F.3d 1090, 1097 (9th 13 | Cir. 2010) (applying “meaningful access” standard to determine reasonable accommodation under 14 | Section 504 of the Rehabilitation Act of 1973). Accordingly, plaintiff's motion for appointment 15 | of pro bono counsel is denied. The denial is without prejudice to refiling at a later point in the 16 | proceeding. 17 CONCLUSION 18 Accordingly, IT IS HEREBY ORDERED that: 19 1. Plaintiff's motion to amend (ECF No. 22) is GRANTED as follows: 20 a. The undersigned will screen plaintiff's first amended complaint (ECF No. 23) in 21 due course, 28 U.S.C. § 1915A; and 22 b. Defendants’ obligation to file a response pleading is stayed pending screening of 23 the first amended complaint. 24 2. Plaintiff's motion for appointment of pro bono counsel (ECF No. 16) is DENIED 25 || without prejudice. 26 | DATED: June 22, 2026 md 27 Z SEAN C. RIORDAN 28 UNITED STATES MAGISTRATE JUDGE