(PC) Davis v. Johnson et al, No. 2:2017cv00544 - Document 20 (E.D. Cal. 2018)

Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 4/18/2018 DENYING plaintiff's 19 request for the appointment of counsel and RECOMMENDING any Fourteenth Amendment claim identified by plaintiff in his 1 complaint be dismissed. Referred to Judge John A. Mendez; Objections to F&R due within 14 days. (Yin, K)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 DENNIS DAVIS, 11 12 13 14 No. 2:17-cv-0544 JAM CKD P Plaintiff, v. ORDER AND B. JOHNSON, et al., FINDINGS AND RECOMMENDATIONS Defendants. 15 16 Plaintiff is a California prisoner proceeding pro se with an action for violation of civil 17 rights under 42 U.S.C. § 1983. On July 25, 2017, the court screened plaintiff’s complaint as the 18 court is required to do under 28 U.S.C. § 1915A(a). After screening the complaint, the court 19 found “plaintiff’s complaint states claims upon which plaintiff may proceed under the Eighth 20 Amendment against defendants Johnson, Graves, LaPastora, Ingram and Gallegos.” Accordingly, 21 the court ordered that those defendants (defendants) be served with process and defendants filed 22 their answer on October 23, 2017. 23 On April 2, 2018, defendants requested the district court judge assigned to this case 24 explicitly dismiss a claim plaintiff identifies in his complaint arising under the Fourteenth 25 Amendment. In the complaint, plaintiff essentially complains that defendants caused him to be 26 housed under conditions presenting a substantial risk of serious harm. The facts alleged amount 27 to a claim under the Eighth Amendment. See Farmer v. Brennan, 511 U.S. 825, 828 (1994). This 28 being the case, plaintiff’s “claim must be analyzed under the standard appropriate to that 1 provision, not the rubric of substantive due process” which falls under the Fourteenth 2 Amendment. U.S. v. Lanier, 520 U.S. 259, 272 n. 7 (1997). To the extent plaintiff attempts to 3 state a claim under the Equal Protection Clause of the Fourteenth Amendment in his complaint, 4 plaintiff fails to allege he has been treated differently from others with whom he is similarly 5 situated and that the unequal treatment was the result of intentional or purposeful discrimination. 6 Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997). 7 For these reasons, the court will recommend that any Fourteenth Amendment claims 8 identified by plaintiff in his complaint be explicitly dismissed by the district court judge assigned 9 to this case. 10 Also, the court notes that plaintiff has requested the appointment of counsel. District 11 courts lack authority to require counsel to represent indigent prisoners in section 1983 cases. 12 Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the 13 court may request an attorney to voluntarily represent such a plaintiff. See 28 U.S.C. § 14 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 15 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional circumstances” 16 exist, the court must consider plaintiff’s likelihood of success on the merits as well as the ability 17 of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues 18 involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not abuse 19 discretion in declining to appoint counsel). The burden of demonstrating exceptional 20 circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of 21 legal education and limited law library access, do not establish exceptional circumstances that 22 warrant a request for voluntary assistance of counsel. 23 Having considered the factors under Palmer, the court finds that plaintiff has failed to 24 meet his burden of demonstrating exceptional circumstances warranting the appointment of 25 counsel at this time. Accordingly, IT IS HEREBY ORDERED that plaintiff’s request for the appointment of 26 27 counsel (ECF No. 19) be denied; and 28 ///// 2 1 2 IT IS HEREBY RECOMMENDED that any Fourteenth Amendment claim identified by plaintiff in his complaint be dismissed. 3 These findings and recommendations are submitted to the United States District Judge 4 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 5 after being served with these findings and recommendations, any party may file written 6 objections with the court and serve a copy on all parties. Such a document should be captioned 7 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 8 objections shall be served and filed within fourteen days after service of the objections. The 9 parties are advised that failure to file objections within the specified time may waive the right to 10 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 11 Dated: April 18, 2018 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 1/mp davi0544.31 18 19 20 21 22 23 24 25 26 27 28 3