(PC) McDougland v. Belluomini

• Court: District Court, E.D. California
• Decided: January 22, 2025
• Docket: 2:22-cv-02242
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAMIEN MARSHJON MCDOUGLAND, No. 2:22-cv-2242 SCR P 12 Plaintiff, 13 v. ORDER 14 J. BELLUOMINI, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se in an action brought under 42 U.S.C. § 1983. 18 The court denied plaintiff’s previous motions for appointment of counsel. (ECF Nos. 38, 43.) On 19 January 10, 2025, plaintiff filed a notice, which in substance is a renewed motion for appointment 20 of counsel and which the court construes as such. (ECF No. 50.) 21 District courts lack authority under 28 U.S.C. §1915 to require counsel to represent 22 indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 23 (1989). In exceptional circumstances, the court may request that an attorney voluntarily represent 24 such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 25 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining 26 whether “exceptional circumstances” exist, the court must consider plaintiff’s likelihood of 27 success on the merits as well as the ability of the plaintiff to articulate his claims pro se in light of 28 the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) 1 (district court did not abuse discretion in declining to appoint counsel). The burden of 2 demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to most 3 prisoners, such as lack of legal education and limited law library access, do not establish 4 exceptional circumstances that warrant a request for voluntary assistance of counsel. 5 Beyond § 1915(e)(1), other sources of law may implicate a request for counsel. For 6 example, appointed counsel may be required in a civil proceeding as an accommodation for a 7 litigant who is disabled. See Franco-Gonzalez v. Holder, No. 10-cv-02211 DMG (DTBx), 2013 8 WL 3674492, at *3-*9 (C.D. Cal. Apr. 23, 2013) (granting summary judgment to class of 9 mentally disabled individuals in civil immigration proceedings on their request for appointed 10 representatives under the Rehabilitation Act). Due process may also require appointment of 11 counsel in certain proceedings. See Turner v. Rogers, 564 U.S. 431, 444-45 (2011) (analyzing 12 request for appointment of counsel in civil proceeding under the Mathews v. Eldridge, 424 U.S. 13 319 (1976), procedural due process framework). 14 Plaintiff suggests that responding to defendants’ requests for production of documents, 15 interrogatories, and requests for admission, as well as sitting for his deposition scheduled for 16 December 30, 2024,1 may implicate his Fifth Amendment right against self-incrimination. 17 Plaintiff states that he requires counsel because he does not “know how to conduct the [discovery] 18 requests” by defendants’ counsel. 19 Depending on the complexity of discovery at issue and its effect on plaintiff’s ability to 20 articulate his claims, exceptional circumstances that warrant the court seeking out counsel under § 21 1915(e)(1) may exist. Moreover, if there is a pending criminal case or investigation involving the 22 same acts underlying plaintiff’s § 1983 action, due process may require the appointment of 23 counsel (or some other safeguard) to advise plaintiff on his Fifth Amendment privileges. 24 However, plaintiff’s motion is insufficient to evaluate these potential concerns. To better 25 evaluate plaintiff’s request for counsel, each side shall submit a short brief explaining (1) what 26 steps they have taken during the discovery process thus far, (2) what discovery is left to be done, 27

28 1 Plaintiff’s motion is signed and dated December 24, 2024. 1 || including whether plaintiff has already been deposed, (3) any challenges they are facing with 2 || respect to the discovery process, and (4) information about any pending criminal case or 3 || investigation involving the same incident as plaintiffs § 1983 action. 4 Accordingly, IT IS HEREBY ORDERED as follows: 5 Within 30 days, the parties shall submit a further short brief of no more than five pages 6 || explaining what steps they have taken during the discovery process thus far, what discovery is left 7 || to be done, any challenges they are facing with respect to the discovery process, and information 8 | about any pending criminal case or investigation involving the same acts as plaintiff's § 1983 9 || action. They parties may include supporting documents attached to the brief with any 10 | mformation he believes is relevant to this issue. 11 After receiving this further information, the Court will either rule on plaintiffs motion for 12 || the appointment of counsel or seek additional information. 13 | DATED: January 21, 2025

15 16 SEAN C. RIORDAN UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28