Peace v. Wu

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MICHAEL PEACE, Case No. 21-cv-01227-SI

8 Plaintiff, ORDER DENYING REQUEST FOR 9 v. COUNSEL

10 WU, et al., Re: Dkt. No. 6 11 Defendants.

12 13 Plaintiff has requested that counsel be appointed to represent him in this action. A district 14 court has the discretion under 28 U.S.C. §1915(e)(1) to designate counsel to represent an indigent 15 civil litigant in exceptional circumstances. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th 16 Cir. 1986). This requires an evaluation of both the likelihood of success on the merits and the ability 17 of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. 18 See id. Neither of these factors is dispositive and both must be viewed together before deciding on 19 a request for counsel under § 1915(e)(1). Exceptional circumstances are not present here. The facts 20 giving rise to the complaint are rather simple and the legal claims appear straightforward. 21 Additionally, plaintiff has been able to adequately articulate his claims pro se. The request for 22 appointment of counsel is DENIED. Docket No. 6. 23 In the order of service, the court noted that the complaint had mentioned the Bain Act, see 24 Cal. Civil Code § 52.1, but did not adequately plead a claim under the Bain Act because, among 25 other things, there was no allegation showing compliance with the claims-presentation requirement 26 under the California Tort Claims Act, see Cal. Gov’t Code §§ 810, et seq. Docket No. 3 at 5 (citing 27 California v. Superior Court (Bodde), 32 Cal. 4th 1234, 1240 (Cal. 2004) (timely claim presentation 1 defendant.”)). The court explained that, if plaintiff had complied with the claims-presentation 2 || requirement, he could file an amendment to his complaint within thirty days. The court directed 3 that, in such an amendment, plaintiff had to: (a) allege ““when he presented his claim and when that 4 || claim was rejected”; (b) allege “facts to show one or more defendants interfered, by threat, 5 intimidation or coercion, with the exercise or enjoyment of State or Federal constitutional or 6 || statutory rights”; and (c) “invoke[e] the court’s supplemental jurisdiction, see 28 U.S.C. § 1367, 7 || over the state law claim.” Docket No. 3 at 5. Plaintiff then filed an “amendment complaint” that 8 merely identified the dates on which his claim was presented and rejected. Docket No. 6-1. The 9 || “amendment complaint” fails to state a claim upon which relief may be granted because it does not 10 || invoke the court’s supplemental jurisdiction and does not allege a claim under the Bain Act, Le., it 11 does not allege facts showing that one or more defendants interfered, by threat, intimidation or 12 || coercion, with the exercise or enjoyment of State or Federal constitutional or statutory rights. 5 13 Finally, plaintiff wrote that there was a video of the event that would show the use of 14 || excessive force. Docket No. 6-1. The parties are required to gather evidence and present it to the 15 court; the court does not investigate on behalf of parties or develop their evidence. Plaintiff should 16 || contact the jail to learn about the procedures required to obtain copies of videos made at the jail. If 3 17 he cannot obtain the information with a simple request at the jail, he may use any one or more of S 18 the discovery tools discussed in Federal Rules of Civil Procedure 26-37. 19 IT IS SO ORDERED. 20 || Dated: May 17, 2021 Site WU tee 21 SUSAN ILLSTON 22 United States District Judge 23 24 25 26 27 28