(PC) Calloway v. Naphcare Inc.

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA JAMISI JERMAINE CALLOWAY, No. 2:24-cv-2446 CKD P 12 Plaintiff, 13 v. ORDER AND NAPHCARE INCORPORATED, et al., FINDINGS AND RECOMMENDATIONS 15 Defendants.

17 Plaintiff is a California prisoner proceeding pro se with a civil action. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

19 Plaintiff has requested leave to proceed in forma pauperis. Title 28 U.S.C. § 1915(g) reads as follows: 21 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 22 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 23 frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 24 physical injury.

25 On October 15, 2020, in Calloway v. Munguia, 2:19-cv-1792 DJC CKD P, the court found that plaintiff had “struck out” for purposes of 28 U.S.C. § 1915(g) and recommended that in forma pauperis status which had previously been granted in that action be revoked. The court’s findings and recommendations were adopted by the district court judge assigned to the case at the time on January 21, 2021. In forma pauperis status was revoked. For the reasons stated in the court’s October 15, 2020, findings and recommendations, plaintiff has “struck out” for purposes of 28 U.S.C. § 1915(g).

4 The allegations in plaintiff’s complaint concern prior wrongs and plaintiff does not point to anything suggesting he is in imminent danger of serious physical injury. The court notes that at least some of the allegations in plaintiff’s complaint concern treatment he has received for issues with his kidneys and that plaintiff seeks a kidney transplant. However, plaintiff does point to facts suggesting that the treatment he is presently receiving for his kidney issues amounts to imminent danger of serious injury.

10 In light of the foregoing, the court will recommend that plaintiff’s request for leave to proceed in forma pauperis be denied.

12 At the end of plaintiff’s complaint, plaintiff requests that the court appoint counsel.

13 District courts lack authority to require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28 16 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of legal education and limited law library access, do not establish exceptional circumstances that warrant a request for voluntary assistance of counsel.

25 Having considered the factors under Palmer, the court finds that plaintiff has failed to meet his burden of demonstrating exceptional circumstances warranting the appointment of counsel at this time.

28 ///// ] Accordingly, IT IS HEREBY ORDERED that: 2 1. Plaintiff's motion for the appointment of counsel is denied.

3 2. The Clerk of the Court assign a district court judge to this case.

4 IT IS HEREBY RECOMMENDED that: 5 1. Plaintiff's request for leave to proceed in forma pauperis (ECF No. 2) be denied.

6 2. Plaintiff be granted fourteen days within which to pay the $405 filing fee for this || action.

8 These findings and recommendations are submitted to the United States District Judge || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days || after being served with these findings and recommendations, plaintiff may file written objections || with the court. The document should be captioned “Objections to Magistrate Judge’s Findings || and Recommendations.” Plaintiff is advised that failure to file objections within the specified || time waives the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th | Cir. 1991).

15 | Dated: September 19, 2024 / ae □□ / a Ly a 16 CAROLYN K DELANEY 17 UNITED STATES MAGISTRATE JUDGE | any call2446.k