(PC) Foust v. Kuku-Ojo ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CARL FOUST, No. 2:16-cv-2731 WBS AC P 12 Plaintiff, 13 v. ORDER 14 O. KUKU-OJO, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se with a civil rights action, has filed another 18 request for appointment of counsel. ECF No. 106. 19 The United States Supreme Court has ruled that district courts lack authority to require 20 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 21 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 22 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 23 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 24 “When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the 25 likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims 26 pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965, 27 970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden 28 of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to 1 || most prisoners, such as lack of legal education and limited law library access, do not establish 2 || exceptional circumstances that would warrant a request for voluntary assistance of counsel. 3 Plaintiff requests counsel on the grounds that he has short-term memory loss, screws and 4 | plates in his throat, and is unable to answer “disposition” questions without assistance. ECF No. 5 | 106. It is unclear whether he is claiming that he requires an attorney to represent him during a 6 || deposition or to assist him in responding to discovery requests. Regardless, as he has been 7 || advised on multiple occasions, disability by itself does not warrant the appointment of counsel, 8 || and plaintiff has not provided medical documentation supporting his claim that he requires 9 || assistance. ECF Nos. 49, 52, 56, 99, 103. Furthermore, plaintiff has not demonstrated that he is 10 | likely to succeed in this action, and the current record does not support the finding of such a 11 | likelihood. Finally, as the court previously found, the only task currently before plaintiff is his 12 || response to defendant’s motion for sanctions, which his previous filings demonstrate he should be 13 | able to respond to without the assistance of counsel. Plaintiff is reminded that his response to the 14 | motion is currently due January 2, 2020, and that if he does not respond to the motion it will 15 || likely be recommended that this action be dismissed. 16 Accordingly, IT IS HEREBY ORDERED that plaintiffs motion for the appointment of 17 || counsel (ECF No. 106) is denied. 18 || DATED: December 17, 2019 ~ 19 Chtten— Lhane ALLISON CLAIRE 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28