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6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY BOBADILLA, No. 2:18-cv-1778 JAM KJN P 12 Plaintiff, 13 v. ORDER 14 GARY KNIGHT, 15 Defendant. 16 17 Plaintiff is a state prisoner, proceeding without counsel. This action proceeds on 18 plaintiff’s claim that on May 21, 2017, while housed at Mule Creek State Prison (“MCSP”), 19 defendant Knight retaliated against plaintiff based solely on plaintiff’s right to free speech in 20 violation of the First Amendment and includes state tort claims for defamation (slander and libel), 21 false imprisonment, and malicious prosecution. On August 1, 2019, plaintiff’s motion to compel 22 further production in response to request number 2 was partially granted, and defendants were 23 ordered to submit documents for in camera review.1 Following the in camera review, as set forth 24 below, the undersigned finds that no further production of documents is required. Plaintiff’s 25 //// 26 1 “REQUEST NO. 2: Any and all incident packages generated by Mule Creek Staff relating to 27 interactions with Plaintiff Anthony Bobadilla on May 21, 2017 at MCSP. This document request includes but is not limited to crime/incident report (Incident Number MCSP-A05-17-05-0226)....” 28 (ECF No. 26 at 35.) 1 subsequently-filed motion for counsel is denied, but he is granted sixty days in which to oppose 2 defendant’s pending motion for summary judgment. 3 In Camera Review 4 The May 21, 2017 incident report states that plaintiff and three other inmates were to be 5 handcuffed “for incitement.” (ECF No. 26 at 76.) Because such other third party inmates 6 apparently witnessed the use of force incident, and were present when defendant addressed 7 plaintiff while all of such inmates were subsequently housed in a temporary holding cell 8 following the incident (ECF No. 1 at 12-13), it is plausible that their CDCR 114 forms might 9 contain relevant information, particularly if such forms reveal another reason for their placement 10 or if they were not placed in administrative segregation at all. Such difference in treatment, if the 11 evidence so demonstrates, could support plaintiff’s retaliation claim. 12 However, review of the CDCR 114 forms reflect that the subsequent housing of the three 13 nonparty inmates in administrative segregation involved no interaction with plaintiff. Although 14 plaintiff maintains that he was placed in a holding cell with one or more of such nonparty inmates 15 following his extraction from his cell, the administrative segregation unit placement notices for 16 such nonparty inmates do not address such housing and do not include any statements by the 17 nonparty inmates, either concerning plaintiff’s instant claims or otherwise. The confidential 18 documents simply confirm that the three third party inmates were put in administrative 19 segregation, as was plaintiff. Plaintiff was previously provided evidence that demonstrates the 20 three third party inmates were placed in administrative segregation. (See, e.g., ECF No. 26 at 76.) 21 The confidential documents do not provide any facts concerning the subsequent housing of 22 plaintiff with any third party inmate following the May 21, 2017 altercation between inmate Jones 23 and the correctional officers. There are no statements by the third party inmates in the 24 confidential documents. Finally, plaintiff was previously provided a copy of the Crime/Incident 25 Report, Log No. MCSP-A05-17-05-0226, with redactions. (ECF No. 26 at 69-208 (Deft.’s Ex. B 26 at 1-219).) Plaintiff did not challenge the redactions, simply claimed he did not get 114 forms for 27 third party inmates. (ECF No. 26 at 2-3.) But plaintiff was previously provided copies of the 28 //// 1 three nonparty administrative segregation unit placement notices, with redactions. (ECF No. 26 2 at 153-56.) Plaintiff did not challenge the redactions. (ECF No. 26 at 2-3.) 3 Therefore, no additional production is required. 4 II. Request for Counsel 5 District courts lack authority to require counsel to represent indigent prisoners in section 6 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional 7 circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28 8 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 9 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional 10 circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as 11 well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the 12 legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not 13 abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional 14 circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of 15 legal education and limited law library access, do not establish exceptional circumstances that 16 warrant a request for voluntary assistance of counsel. Moreover, although plaintiff claims he has 17 been unable to conduct an investigation depose defendant, the record reflects plaintiff was able to 18 conduct discovery, and has diligently prosecuted his case. 19 Having considered the factors under Palmer, the court finds that plaintiff has failed to 20 meet his burden of demonstrating exceptional circumstances warranting the appointment of 21 counsel, and his request for counsel is denied. However, the court will grant plaintiff sixty days 22 in which to oppose the pending motion for summary judgment. 23 Accordingly, IT IS HEREBY ORDERED that: 24 1. Following in camera review, plaintiff’s motion to compel (ECF No. 26) further 25 production in response to Request No. 2 is denied. 26 2. Plaintiff’s motion for the appointment of counsel (ECF No. 37) is denied. 27 //// 28 //// 1 3. Within sixty days from the date of this order, plaintiff shall file his opposition to the 2 | July 12, 2019 motion for summary judgment (ECF No. 31). Plaintiff is cautioned that failure to 3 | file an opposition may result in a recommendation that this action be dismissed. 4 4. The Clerk of the Court shall file the confidential documents under seal. 5 | Dated: August 20, 2019 Fens Arn 7 KENDALL J. NE

UNITED STATES MAGISTRATE JUDGE

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